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  Alternative Dispute Resolution


Eleventh Circuit Makes Vacatur Challenges More Difficult

By Jaya Sharma

A cautionary note for counsel seeking to challenge enforcement of an award and a road map for how to conduct a bulletproof arbitration.


Third-Party Discovery in Arbitration: Between a Rock and a Hard Place

By Anthony J. Rospert

Arbitration rules do provide some means to secure the information necessary to prosecute your case.


Chipping Away at the Enforceability of Class Waivers Requiring Arbitration of Employment Claims

By Carolyn G. Burnette

"Iskanian rule" affirmed, invalidating action waivers requiring individual arbitration of Private Attorneys General Act claims.


Young Lawyers: Don't Sue the Arbitrators!

By Sheila J. Carpenter

Such suits put the plaintiff and its counsel at risk for sanctions.


Settling Raiding Cases in the Securities Industry

By Dana N. Pescosolido

New study of raiding awards adds guidance.


The Court, Not the Arbitrator, Decides the Validity of an Agreement Containing an Arbitration Clause

By Komal Chokshi

If the parties had chosen the FAA as the controlling law, the result would have been different.


Inconsistent as to One, Inconsistent as to All: Sometimes It's Too Late to Arbitrate

By Adwoa Ghartey-Tagoe Seymour and Christian J. Bromley

Employers who proceed with litigating collective actions may waive their contractual rights to arbitrate as to all plaintiffs, regardless of opt-in date.


Does the FAA Preempt California's Severability Rule as Applied to Arbitration Agreements?

By Charles E. Harris II, Sarah E. Reynolds, and Logan A. Steiner

Settlement moots a case in which the Supreme Court would have decided the issue.


Young Lawyers: Does Adoption of the AAA Rules Grant an Arbitrator the Authority to Decide Whether Class-Wide Arbitration Is Authorized?

By P. Jean Baker

It depends on the federal circuit providing a response.


Has the CFPB Asked the Right Questions about Consumer Arbitration?

By Lisa Renee Pomerantz

A look at the fundamental weaknesses in the suggestion that class action litigation is the best mechanism for resolving consumer complaints.


The Legal Landscape of Class Arbitration Waivers in Consumer Contracts

By Alvaro J. Peralta

Key questions remain after Italian Colors and in light of rules proposed by the CFPB and congressional legislation.


Third Circuit Rules No Second Bite at the Arbitration Apple

By Sarah Espinosa

Don't wait until after an award is issued to investigate or allege arbitrator malfeasance if such information could be discovered prior to the award.


Failure to Pay Arbitration Fees Can Result in a Lift of Arbitration Stay

By Robyn Weinstein

An order to lift an arbitration stay was affirmed after the proceeding ended in default for failure of payment by one party.


Another Nursing Home and Arbitration Clause in Alabama

By Gary C. Norman

The court ruled that an individual lacked the mental capacity to authorize a relative to execute an arbitration agreement on his behalf.


The Successful Road to Settlement: Roundtable

By William Caprathe

Observe the perspectives of judges, mediators, and litigators regarding judicial settlement conferences, mediations, and how they interact.


American Arbitration Association Revises Construction Arbitration Rules

By Edward Lozowicki

New rules authorize arbitrators to grant dispositive motions, impose sanctions, and employ other procedures to streamline and expedite proceedings.


Essential Attributes of an Effective Mediator

By Edmund J. Sikorski, Jr.

Impasse avoidance techniques in monetary claims.


Clawback Suits Are Not Categorically Exempt from Arbitration under FAA

By Quinton M. Herbert

Absent clear and unambiguous conflict, courts should enforce arbitration agreements.


An Arbitrator's Duty to Be On Time

By Marcia L. Adelson and Joan D. Hogarth

Texas court declined to consider other reasons when it vacated an arbitration award due to its being issued late.


A "Reasoned Award" Requires That the Reasoning Be Expressed

By Sara Kula

Arbitration remanded back to the arbitrator due to written award not meeting the "reasoned award" standard.


Young Lawyers: Recent Trends Impacting Enforcement of Arbitration Agreements

By P. Jean Baker

Individuals asked to sign the binding agreements must knowingly and voluntarily agree to waive a fundamental constitutional or statutory right.


The Delaware Rapid Arbitration Act: Cost-Efficient Resolution of Business Disputes

By Charles E. Harris II and Sarah E. Reynolds, with Jeehee "Naomi" Yang

The DRAA seemingly presents a method to resolve disputes in response to demands for alternatives to the existing arbitration regime.


Insurance Appraisal Proceedings: What May the Appraisers Decide?

By Sheila J. Carpenter

Deciding the value of a loss without considering what caused it can present problems, leading to some confusion in the case law.


Ninth Circuit: Under AAA Rules, Arbitrator Decides Unconscionability

By Mark Kantor

Also, a discussion of the broader implication of the decision, including whether it applies to unsophisticated parties and outside the commercial area.


Ninth Circuit Reverses Mid-Arbitration Removal of Arbitrator

By Sheila J. Carpenter

Successful requests for judicial intervention have become even rarer.


Developments on Judicial Review under the FAA after Hall Street

By Theodore K. Cheng

The ability of parties to contractually modify the grounds for vacatur of arbitration awards is a subject of decisional percolation.


In Determining Arbitrability, Conjugation and Context Count

By Sara Sheinkin Kula

Sixth Circuit refused to apply an arbitration agreement written with forward-looking statements on a claim that arose before the agreement was signed.


Young Lawyers: Assessing the Strengths and Weaknesses of a Pending Arbitration

By P. Jean Baker

The AAA offers a new online tool (CaseXplorer) designed to help attorneys anticipate some of the surprises that can arise.


Opting In or Opting Out: Report on Consumer Arbitration Clauses

By Gary C. Norman

As an attorney with a sensory disability, should you purchase an iPhone?


What Mediation Counsel Can Learn from the Boy Scouts of America

By Edmund J. Sikorski, Jr.

Follow the BSA motto: Be prepared.


What Should You Consider if You Plan to Negotiate By Email?

By Joan Sterns Johnsen

Guidance on best practices for email communications.


Evident Partiality: Know It When You See It

By Sheila J. Carpenter

The failure rate for petitions to vacate arbitration awards based on "evident partiality" is extraordinarily high.


Arbitration Deadlines Are Real Deadlines

By Angela Foster

A Texas court refused to confirm an award filed after the date proposed by the parties' agreement.


Incorporation of Arbitration Agreement and Corporate Waiver of Right to Arbitrate

By Monique Sasson

Although the right to arbitrate may be waived, a separate corporate entity's actions will not be attributed to another party.


Lessons Learned from In re Colorado Energy Management

By Charles E. Harris II and Sarah E. Reynolds

Claimants run the risk of having an award vacated if the arbitrator exceeded authority in awarding damages under legal theories never submitted.

Young Lawyers: Recognizing "Sham" Agreements to Arbitrate

By P. Jean Baker

Recent decisions by the Eleventh and Seventh Circuits provide guidance on how to recognize an "illusory" agreement to arbitrate.


Using Detailed Written Witness Statements for Direct Testimony to Streamline Arbitration Hearings

By D. C. Toedt III and Maretta Comfort Toedt

Federal judges increasingly use written witness statements in bench trials. Arbitrators can, too, with these scheduling-order provisions.


Coverage You Can Count On?

By Raymond A. Garcia

A look at ADR’s effectiveness in commercial disputes involving insurance.


Fascinating Highlights of the CFPB Arbitration Study

By Liz Kramer

Highlights of a comparison study between AAA consumer arbitration and consumers' federal court data.


Pre-Award Removal of an Arbitrator

By Sheila J. Carpenter

Recusals may be easier to obtain in arbitration than in a courtroom, but judicial assistance in removing an arbitrator is rare. Recently, two courts have taken that unusual step.

Arbitrability of Preclusive Effect of Prior Confirmed Award

By Monique Sasson

The First Circuit shines a guiding light on whether the preclusive effect of a prior arbitration is arbitrable. It is, including in circumstances where the first award has been confirmed by a federal court order.

Do Arbitration Clauses Survive Termination of the Contract?

By Clarence Westbrook

In a case of first impression, the Sixth Circuit determined that the parties' omission of the arbitration clause from the survival clause did not constitute a "clear implication" or "positive assurance" that the parties intended the arbitration clause to have no post-termination effect.

Appealing Arbitration Decisions: Practice Tips for Young Lawyers

By Sheila J. Carpenter

Arbitration and litigation are cousins, somewhat alike and yet quite different. These cases illustrate how that is true in the appellate arena.

Arbitrating Arbitrability with Nonsignatories

By Tom Alan Cunningham

Who decides arbitration's gateway questions when a party to the arbitration is not a party to the contract?

Arbitration Panels May Limit Discovery and Evidence

By Sheila J. Carpenter

Three U.S. Courts of Appeals issued decisions shedding light on the boundaries arbitrators face when balancing the goals of fair hearings with resolutions in ways that are quicker and less expensive than litigation.

Sign On the Dotted Line!

By Hon. Nancy Holtz

The New Jersey Supreme Court creates a new rule mandating that an agreement reached at mediation must be in writing to be enforceable.

Is an Arbitral Award Entitled to Collateral Estoppel Effect?

By Monique Sasson

The U.S. District Court for the Eastern District of Pennsylvania found that an Italian-seated arbitral award is entitled to collateral estoppel effect.

What Constitutes Arbitration for Federal Arbitration Act Purposes?

By Asa Lopatin

Federal courts agree that federal policy favors arbitration, but not on how to define arbitration.

When the Arbitration Forum Is Unavailable: What Happens Next?

By Christopher J. Karacic and Howard S. Suskin

When arbitration forums fail, should courts appoint substitute arbitrators or excuse parties from their obligations to arbitrate?

Determining Arbitrability when the Relationship Between Parties Is Governed by Multiple Agreements

By Michael J. Miles, Esq.

How do courts determine whether and how to enforce arbitration between parties with contractual relationships?

The Question of U.S. Enforcement of Annulled Foreign Arbitral Awards

By Monique Sasson

The Southern District of New York granted a motion to confirm a foreign award that was set aside in Mexico by the courts of the seat of the arbitration proceeding.

Arbitrators Do Not Exceed Their Powers Simply Because They Render a "Bad or Ugly" Decision

By Christopher Moore

In a recent decision the Supreme Court rules that courts have no business overruling an arbitrator’s “good, bad, or ugly” construction of a contract.

Young Lawyers Beware: Procedural Roadblocks Can Seriously Derail Your Client's Arbitration

By P. Jean Baker, Esq.

During the past decade, arbitration has become an increasingly complex process filled with a host of potential roadblocks. These procedural hurdles can result in costly and time-consuming delay, if not vacatur, of your client’s award.

Conference Session Recap: Mass Torts Settlement

By Bonnie Mayfield

What are crucial issues involved in mass tort negotiation and settlement? Cy pres distributions and ethical consideration are a few of the many issues.

Disqualifying Post-Med-Arb-Med Conduct by Neutral Does Not Unwind Signed Settlement Agreement

By J. Gregory Whitehair

A Michigan neutral's decision to vacation with defense counsel after conducting med-arb sessions got her disqualified, but without upsetting her pre-vacation decisions.

D.R. Horton Hears It from the Ninth Circuit

By Michael Porter

Ninth Circuit rejects argument that employment arbitration agreement with class-action waiver violates the NLRA.

The Supreme Court's New Arbitrability Options

By Monique Sasson

The Court granted a petition for a writ of certiorari in a case concerning the interpretation of a "precondition to arbitration" in a bilateral investment treaty.

Admissibility of Settlement-Related Evidence at Trial

By Gerald E. Burns

To understand how settlement-related evidence may be used at trial, it is important to understand the parameters of Rule 408.

Does the NLRA Trump the FAA? Apparently Not

By Judge Bruce Meyerson

In 2012 the National Labor Relations Board held that a class action waiver in an arbitration agreement violated the National Labor Relations Act. Recent decisions of the U.S. Supreme Court have cast doubt on that decision. Three court of appeals rulings have explicitly rejected it.

Can Sanctions Be Applied for Bad Faith in Court-Ordered Mediation?

By Charles F. Forer

The court cannot force a party to settle or even to make a settlement offer.

Ninth Circuit Retreats from Complete Destruction of Broughton-Cruz Rule

By Sheila J. Carpenter

The ongoing struggle to define which arbitration agreements are "unconscionable," received no assistance from the en banc Ninth Circuit.

Associational Arbitration: First Circuit Finds a New Way to Limit Stolt-Nielsen

By P. Jean Baker

Unable to determine whether associational arbitration is equivalent to a class action, the court orders that the arbitrators shall determine whether group arbitration may proceed.

Young Lawyers: Motion Practice in Arbitrations

By J. Timothy Eaton

Motion practice is now taking root in arbitration, and may be a positive development if properly managed.

The Fifth Circuit Accepts Judicial Estoppel as a Basis for Discovery

By Monique Sasson

The court, however, did not decide whether BIT arbitration constitutes an "international tribunal."

Pattern-or-Practice Constitutes a Method of Proof and Not a Substantive Claim

By Jerome F. Crotty

A plaintiff bringing an action on behalf of herself and a putative class of similarly-situated women must arbitrate her individual claims.

What Constitutes Waiver of a Right to Arbitrate under the FAA?

By Regina Pepe Martorana and Christina Ryfa LoConte

Courts differ in determining whether a party has relinquished the right to compel arbitration, but prejudice to the nonmoving party is a common factor.

Federal Arbitration Act Reigns Supreme

By Robert Knuts

U.S. Supreme Court takes Oklahoma court to task for its effort to block arbitration proceeding.

Court Intervention When the Parties’ Arbitrator Appointment Process Fails

By Gilda R. Turitz

Courts have limited authority to intervene in the arbitrator selection process and limited ability to fashion remedies in multiparty disputes when clauses contemplate two-party disputes.

Just Arbitrate Already

By Jeffrey Krausman and John Lande

Eighth Circuit refuses to invalidate two arbitration agreements.

Illinois Supreme Court Upholds Arbitrator's Decision on Employee Reinstatement

By Mitchell Marinello

The ruling demonstrates how an arbitrator can protect their award by explaining how the contractual terms and evidence support the award.

Eleventh Circuit Holds Foreign Arbitration Panel Is a Tribunal

By Elizabeth C. Wolicki

The ruling may dramatically expand the scope of discovery in international arbitrations.

Limitations on Court's Discretion to Compel Attendance at Settlements

By Raymond A. Garcia and Ingrid C. Festin

Even the court's experience may not be enough to justify ordering a high-ranking government official with full authority to settle a case to attend a settlement conference.

Mediate, Arbitrate, or Litigate Disputes?

By P. Jean Baker

Each method of resolving disputes has strengths and weaknesses.

Choosing the Right Mediator

By Bruce A. Rubin

Mediation is not a one-sized process that fits resolution of every type of dispute.

Young Lawyers: Why Not Use Mediation to Sharpen Your Trial Skills?

By Bruce A. Rubin

Few of us applied to law school so we could excel at mediation.

When Amendable Arbitration Clauses Are Illusory

By Brian E. Cohen

A California court held that a clause in an employment agreement was illusory because the employer retained the ability to amend the clause to cover claims that had already accrued.

The FAA Dictates the Supremacy of Arbitration Agreements . . . Right?

By Sheila J. Carpenter

The Supreme Court has been quite clear, but the message continues to meet resistance.

Conditions Precedent to Commencing an International Arbitration

By Manjit Gill

The virtues of swift resolution of international disputes by arbitration are not sacrosanct.

Federal Circuit Rejects Negotiation Privilege for Non-Mediated Discussions

By J. Gregory Whitehair

A recent decision casts doubt upon several district-court cases that have found a settlement-negotiation privilege.

AT&T v. Concepcion's Effect on Employment Agreements

By Olivia St. Clair

According to the NLRB, requiring an employee to sign a waiver of class arbitration may constitute an unfair labor practice.

Young Lawyers: Is the Arbitration Domestic or International in Scope?

By P. Jean Baker

International arbitration can come into play in what may seem the most basic of domestic business disputes.

Arbitrator Partiality Claims Must Allege More Than Predisposition

By Scott D. Simon

Two recent cases address an arbitrator's "evident partiality" from different angles.

Waiver of Right to Compel Arbitration Does Not Bind Agent

By Nicholas K. Holmes and Cori Phillips Palmer

Several courts agree that a principal's agent is free to go to arbitration despite the principal's waiver of the right.

Trends in Court Interference with Pending Arbitration Proceedings

By Adam Waskowski

The costs of arbitration will skyrocket if courts start routinely enjoining or interfering with arbitration proceedings.

How "Reasoned" Must a "Reasoned Award" Be?

By Manjit Gill

Clarity at the contractual drafting stage will ensure parties get the awards they seek.

Arbitration and Class Actions: A Bleak Future?

By Jacqueline A. Chamberlain

The Southern District of New York recently cited Concepcion as authority to enforce arbitration agreements.

Finding Commonality: The Lessons of Dukes for Class Litigation

By Jeffrey Krausman and John Lande

Cases explaining the requirements of Rules 23(a) and (b) are instructive for arbitrators at/litigation/mo/premium-lt/articles/ting to apply the parallel arbitration rules.

Texas General Arbitration Act Allows for Expanded Judicial Review

By Gabrielle Jackson

The Naftka Traders court held that the TAA allows parties to contract for expanded review of arbitration awards.

When Non-Signatories Compel Arbitration, Relationships Matter

By Gilda R. Turitz

The relationship among parties is a key factor in determining the outcome of a non-signatory’s motion to compel arbitration.

When Is an Arbitration Award Final for Purposes of Collateral Estoppel?

By Alexander O. Canizares

Applying issue preclusion to arbitration has proven difficult and unpredictable, complicated in part by perceived differences between arbitration and litigation.

Seventh Circuit Allows Arbitrator to Hear Dispute over Original Award

By Adam Waskowski

Discovery Subpoenas in Arbitration—Due Care Required

By David T. Lopez

When Is Arbitration a Tribunal under 28 U.S.C. § 1782?

By Jonathan Straw

Ninth Circuit Departs from Fifth Circuit's Prohibition of Ex Parte Conduct by Arbitrators

By Olivia St. Clair

Negotiation Basics for Young Lawyers

By P. Jean Baker

Does a Federal Arbitration Privilege Apply in Arbitration Proceedings

By P. Jean Baker

How to Avoid an Insurance Carrier's Post Hoc Veto Power

By Randal L. Hutson

The Supreme Court Erects Another Roadblock to Challenging Arbitration

By Rebecca Callahan

Ten Things Lawyers Love/Hate about Mediators

By Jobi Halper

A Blow to Class Arbitration

By Brian T. Feeney

Young Lawyers: Selecting the Right Mediator

By P. Jean Baker

Chess Clock Arbitration

By Raymond A. Garcia, Nicole Liguori Micklich, and Michael V. Pepe

NLRB Strikes Down Employer’s Mandatory Arbitration Policy

By Kelly Petrocelli, Gerald F. Lutkus, and William A. Nolan

Private Mediation: A Quick Checklist

By Beatrice O'Donnell

Preventing a Runaway Arbitration with a Well-Drafted Arbitration Clause

By Patricia C. O'Prey and Gilda R. Turitz

The Evidentiary Hurdles of Arbitration

By Matthew K. Edling

Why Trial Lawyers Should Love Arbitration

By John Arrastia Jr.

Supreme Court Upholds Arbitration Anti-Class Provisions in AT&T Mobility LCC v. Concepcion

By Jobi Halper

Argument Leans Toward State's Right to Apply Unconscionability Standard in Consumer's Favor

By Jobi Halper

Ninth Circuit Reaffirms Narrow Scope of Review of Arbitration Awards

By Adam Waskowski


Choosing Arbitration in Construction Cases

By Neal M. Eiseman

What to Do When Insolvency Becomes an Issue in Mediation

By Rebecca Callahan

Halliburton/KBR Gang Rape Gives Employment Arbitration Provision Center Stage

By Jobi Halper

Supreme Court Curtails Federal Jurisdiction Over Arbitrability Disputes

By J. Noah Hagey

The Debate Continues Over the "Agreement in Writing" Requirement in International Arbitration

By James Hosking and Yasmine Lahlou

EEOC Mediation: An Early and Often-Overlooked Opportunity to Settle an Employment Dispute

By Jennifer B. Salvatore

Effective Use of Depositions at Tricbaral

By Jeffrey J. Kroll

The Secrets of Superstar Associates

By Tom Hentoff

Statutory Construction: Lessons from Recent Supreme Court Decisions

By Victoria Dorfman

Twelve Tips for Making Expert Testimony Come Alive

ByAron Levko