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April 01, 2022

Letter from the Chair

David Larson

Pivot.  That is a word I rarely used or heard until a few years ago.  But it seems to have become a part of our everyday vocabulary.  We frequently must adjust as one variant of the coronavirus peaks and declines followed by another cycle.  Conditions are changing so quickly that I cannot predict what the circumstances will be by the time this letter is published.  I can only hope—perhaps over optimistically—that infection rates have declined so much that we have returned to what we now fondly recall as “normal.” 

This is the third consecutive year that our Dispute Resolution Section has had to pivot our annual spring conference.  We originally planned to hold our 2022 conference in person, in Los Angeles. Many of us were looking forward to gathering once again. However, given the uncertainty regarding what the health situation will be in April, many of our leaders and members said they were unwilling to commit to attending in person. And because it is not yet feasible for us to hold a “hybrid” conference in person and online, we decided the best course of action would be to pivot and plan a virtual conference.  Because we already have presented two virtual spring conferences, we are confident that we can present an even better virtual conference this year.  We have scheduled outstanding programs, networking activities, and social events for this year’s conference, and we are confident it will be a success. 

Sometimes people and institutions pivot out of necessity, and sometimes they pivot because they realize that what they had done previously was a mistake that needs to be corrected.  On February 10, 2022, the United States Senate passed bipartisan legislation prohibiting the enforcement of predispute arbitration agreements to resolve sexual assault and harassment claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed in the House by a 335 to 97 margin.  President Biden is expected to sign the bill and likely will have done so by the time this letter is published. 

In my view, this legislation was long overdue and represents an important pivot.  Predispute arbitration agreements combined with nondisclosure agreements have prevented victims from revealing what they have suffered, which has allowed sexual harassment and assault to remain private and to continue.  I have already seen questions and discussion regarding the constitutionality of this legislation, and I look forward to further detailed discussion of this issue.  But because the Supreme Court has consistently held that federal law preempts state law attempts to regulate arbitration, my first reaction is that this legislation will likely withstand constitutional challenge. 

Another recent and important pivot involves mediation. The United Nations Convention on International Settlement Agreements Resulting from Mediation, popularly known as the Singapore Convention on Mediation, became effective in September 2020.  This treaty will expand the use of mediation, which should have a positive effect on international trade.  Under the treaty, mediation agreements will be recognized and enforced much like arbitration agreements subject to the New York Convention.  No longer will parties have to rely on litigation or arbitration to enforce mediation agreements.

The Section of Dispute Resolution has been an important supporter of the Singapore Convention. Our Section and the International Law Section cosponsored ABA Resolution 104A, which “urges all nations, including the United States, to become party to and implement the [Convention].”  Although the United States has signed the Convention, the Convention has not yet been ratified by the United States Senate. Our Section continues to push for ratification. For example, we are actively participating in the ABA working group that sent a letter to the State Department last October explaining why the United States Senate should ratify the Convention.

I am certain that we all have pivoted in a variety of ways the past two years.  Many of those changes in direction have been challenging and perhaps exhausting.  I hope the pivots you have made resulted in enhancements and improvements, perhaps in ways you never anticipated.   And I hope all of us have found ways to continue to provide the valuable dispute resolution services we provided before we encountered the pandemic.

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