May 21, 2019

May 2019

Message from the Co-Chairs

The Arbitration Committee is pleased to present the May 2019 issue of Just Resolutions. In this issue, Arbitration Committee members address some common misconceptions about arbitration that often frame the debates around the public policy of arbitration and drive discussions about whether to include arbitration clauses in agreements for our clients.

One such misconception is that arbitration is completely confidential. As Gerold Zeiler and Thomas Herbst explain, although the process isn’t public record, the arbitration clause or other agreements govern what parties to the arbitration may disclose outside the arbitration itself. At the core, the parties decide how public to make their arbitration.

Another misconception is that dispositive motions aren’t available in arbitration. As D.C. Toedt explains, motions for partial summary judgment can be an effective way to narrow issues or resolve the entire case with less expense to the parties. These motions are becoming more and more common in arbitration.

The two final articles in this issue discuss a broader range of misconceptions, one from the perspective of a veteran arbitrator who has dealt with an array of issues that arise in proceedings and the other from authors who work for an online dispute resolution provider. 

We hope that this issue helps clear the air on many of the misconceptions about arbitration and helps address many of the concerns commonly, but mistakenly, cited in the ongoing public discourse about arbitration.

If you would like to learn more, please join our Committee or contact the Committee’s co-chairs

Kind Regards,

Ed Lozowicki and Harout Samra

Featured Articles

Parties’ Obligation to Confidentiality in International Commercial Arbitration: Fact or Fiction?
Gerold Zeiler & Thomas Herbst

One of the common selling points of arbitration besides relative speed of proceedings and greater economy compared to litigation before national courts is the confidentiality of proceedings. Particularly in cross-border matters, parties regularly welcome the possibility to settle disputes in a confidential environment far from the prying eyes of the public, competitors, and authorities. Read more

To promote settlement, arbitrators should encourage requests for leave to file motions for partial summary judgment
D.C. Toedt

Some party counsel in arbitration really, really wish that arbitrators would consider motions for full or partial summary judgment (PSJ) in appropriate cases; many counsel’s experience is that arbitrators tend to disfavor such motions. Here are a few anecdata to illustrate the point. Read more

Adopting a “Culture of Arbitration” for Success: One Arbitrator’s Perspective on Top Arbitration Myths
Jeffrey G. Benz

Much lore surrounds the arbitral process. Some of it is simply not true. This article endeavors to identify and dispel the top ten such myths on this arbitrator’s list. Read more

Online Arbitration: Six Misconceptions & Information Asymmetry
Joe De Larauze and Liam Stanton

As the staff of an online arbitration platform, we have become aware of the many contentions held around the subject of arbitration, as its effectiveness as a tool to further the legal process continues to be disputed…We would like to discuss some of the criticisms of arbitration and how its online counterpart may address them. Read more

Check out the Section’s new Podcast!

We are proud to announce Resolutions: A Podcast About Dispute Resolution and Prevention!

This podcast is the product of the hard work of the newly formed Podcast Committee and will consist of a series of conversations with professionals in the dispute resolution community about various topics of interest to members of the DR Section. Please listen, rate, and review.

Listen here

2019 Representation in Mediation Competition Champions

The National Finals of the ABA Representation in Mediation Competition were held in Minneapolis on April 10 and April 11, in conjunction with the ABA Section of Dispute Resolution spring conference. Eight schools from across the country competed. The team from Fowler School of Law at Chapman University in southern California survived the two opening rounds, the semi-finals, and the finals to win the national championship. ABA National Representation in Mediation Competition coordinating committee members Rishi Batra and Lauren Newell presented the award to the winning team members from Chapman, Drake Mirsch and Sarah Bennett. Read More

Save the Date:  17th Annual Advanced Mediation and Advocacy Skills Institute

South Texas College of Law Houston
Houston, TX
November 15-16, 2019

This two-day interactive institute features rare opportunities to learn from some of the leading mediators and advocates in North America. Each plenary session panel features an expert mediator, in-house counsel, and a skilled outside attorney, discussing each phase of the mediation process. Small group discussions led by experts in the field follow the plenary session panels. The opportunity for mediators and advocates to interact in small facilitated groups provides a unique environment to enhance your skill, knowledge and understanding of the mediation process.

New Orleans 2020

Save the Date for the Section of Dispute Resolution’s Spring Conference

New Orleans Sheraton
April 22 – 25, 2020

Join the Spring Conference Countdown community on ABA Connect. We will post conference updates to this community, including how to submit conference program proposals, as well as registration, program details, plenary presenter announcements, special events, and more. To receive updates from the Countdown Community you must join the Community. Join the Spring Conference Countdown Community by clicking on “Join Community” in the right-hand corner of the Spring Conference Countdown Community page. When prompted, make sure you set your email preferences to Real Time or Daily Digest in order to be notified when there is an update.

Webinar: Conflict Management and Legal Risk Mitigation in Healthcare

May 29, 2019
1 pm EDT

A free webinar for members of the ABA Section of Dispute Resolution.

As the stakes can be life and death, tensions and conflict in healthcare are often more pervasive and more destructive than in other industries. Particularly for staff and employee conflicts, healthcare organizations are increasingly establishing ombuds offices – including MD Anderson, Mt. Sinai, NIH, Yale Medical Center, Stanford and many more. Ombuds offer confidential, impartial, independent services ranging from coaching and informal facilitation to mediation, helping to resolve conflicts before EEO complaints and HR grievance procedures become necessary. This presentation will explain how Ombuds programs can improve compliance, reduce organizational conflict, mitigate risk and foster an ethical culture.

To register or for more information

Become a Leader of the Section of Dispute Resolution

Seeking 2019-2020 ABA Section of Dispute Resolution Leadership Applications

The Section of Dispute Resolution is seeking applicants from section members who are interested in taking on a leadership role with as a member of the Section Council or as a committee chair for the Bar Association year 2019-2020 that will start in August 2019.

Council Members

The Nominating Committee is now accepting nominations for: Four at-large Section Council positions and three Executive Committee positions: Budget Officer, Vice-chair, and Chair-elect.

To be eligible for the elected Council and Executive Committee positions, nominees must have been Dispute Resolution Section members for at least one year prior to nomination. Individuals may self-nominate or may be nominated by others by sending a: (1) cover letter; (2) brief biographical statement; and (3) summary of Dispute Resolution Section involvement/contributions no later than May 30, 2019 to Dispute Resolution Section Director Linda Seely at linda.seely@americanbar.org.

Committee Chairs

Committees are the primary vehicles for accomplishing the work of the Section in continuing legal education (CLE), publications, the advancement of the law and the profession, and the attraction and retention of Section members. Committee chairs play a significant role in developing and approving programs and events for the Section of Dispute Resolution annual spring conference and are involved in planning distance-learning and in-person CLE programs and meetings related to their committee.

The current Section Chair-elect appoints committee chairs for the upcoming bar year. If you are interested in serving as a committee chair, communicate your interest to Linda Seely at linda.seely@americanbar.org.

We are now accepting submissions for the 2019 James Boskey Dispute Resolution Essay Competition!

The competition is open to anyone who was a full-time or part-time J.D. law student at an ABA-accredited law school during the 2018-19 academic year.

First Prize: $1000 to the Competition winner and posting of the winning essay and runner-up online.

For more information and how to enter

Dispute Resolution Events

Introductory Interdisciplinary Collaborative Divorce Training
June 21-22, 2019
Nashville, TN

Training for professionals who want to learn how to be a part of a collaborative law process.