Articles

2020

Debate Continues as Seventh Circuit Limits Section 1782 to Governmental Tribunals
By Eric van Ginkel – October 15, 2020
Does “foreign or international tribunal” include a private arbitral tribunal? Two Servotronics cases give opposite results. 

Arbitrators Must Disclose Ownership Interest
By Jeanine Telfer – August 21, 2020
Arbitrator disclosure of an economic interest does not suffice as constructive notice of an ownership interest for parties to make an informed decision for waiver.

What Is a “Tribunal”? Circuit Courts Disagree
By Sunu M. Pillai – August 21, 2020
Three circuit courts have reached varying conclusions over the past year on whether the word “tribunal” includes private arbitration panels.

The Southern District of New York Denies Request to Vacate AAA Insurance Coverage Award
By Erin Gleason Alvarez – August 21, 2020
The petitioners claimed, in part, that arbitrators were biased because they accepted appointments to other arbitrations involving the respondents.

Eleventh Circuit Refuses to Vacate International Arbitration Award
By Kenneth E. Sharperson – August 21, 2020
The court recently addressed whether foreign arbitral awards can be set aside on public policy grounds under Article V of the New York Convention.

Canadian Courts Endorsing Cross-Examination by Video
By Daniel Urbas and Julie G. Hopkins – August 3, 2020
The courts are supportive of the use of video conferencing for all aspects of court proceedings.

In an Arbitration Agreement, When is a Class Action Not a Class Action?
By John Bickerman – July 8, 2020
The answer is when it’s a claim for public injunctive relief.

The Future is Now: Videoconferencing in the Era of Covid-19
By John Bickerman – June 4, 2020
Some tips on how to make videoconferencing work for you and your clients.

Utilizing Virtual Arbitration during the Pandemic
By P. Jean Baker – May 26, 2020
A promising alternative provided you know what you are doing.

“Partial Final Award”—Oxymoron or Confirmable?
By Sheila J. Carpenter – May 26, 2020
A series of cases from 2019 illustrates the different approaches federal courts have taken.

One Class-Wide Arbitration Versus Thousands of Individual Arbitrations
By P. Jean Baker – May 26, 2020
Two companies were confronted with invoices totaling millions of dollars in fees and costs when workers simultaneously filed thousands of individual arbitration demands.

Special Forces for the Tough Case
By J. Patrick O’Malley, Eric O. English, and Frank M. Bedell – May 26, 2020
Settlement counsel may not be right for every case, but they might very well be the difference in your next case “that can’t be settled.”

Lack of Diversity Continues to Hurt Alternative Dispute Resolution
By Armeen F. Mistry – May 26, 2020
Increasing diversity among ADR practitioners will serve to enhance the business of ADR and further legitimize ADR as a conflict-resolution solution.

How to Evaluate Rather than Whether to Evaluate
By Joan Stearns Johnsen – May 20, 2020
Just as not all audiences equally receive all evaluations, not all evaluations are equal.

A Shared Goal: Efficient, Cost-Effective Commercial Arbitration
By Joan Stearns Johnsen – February 17, 2020
Arbitrators possess a great deal of power that they can and should exercise to keep costs down and move the process forward expeditiously and fairly.

Obstacles—and Workarounds—to Obtaining Third-Party Documents in Arbitration
By Charles F. Forer – February 13, 2020
Where courts refuse to allow document production from third parties, there are workarounds. 

Disclosure of Arbitrators’ Interest in Arbitral Institutions
By Sunu M. Pillai – February 13, 2020
Arbitrators will need to disclose any ownership stakes in the arbitral institutions, and the institutions may need to disclose the amount of business they have previously done with the parties.

No Functus Officio When Court Retains Jurisdiction in Final Arbitral Award
By Kenneth E. Sharperson – February 13, 2020
The Southern District of New York recently tackled the issue of whether a final award is functus officio if an arbitration panel retains jurisdiction.

Arbitral Subpoenas to Third Parties for Prehearing Discovery: Where the Circuits Stand
By Sheila J. Carpenter – February 13, 2020
A recent decision by the Eleventh Circuit sheds additional light on the reach and enforceability of prehearing discovery subpoenas issued by arbitrators to third parties. 

A Sleeper from the Third Circuit?
By Robert E. Bartkus – February 5, 2020
Three arbitration rulings in a September precedential opinion have received virtually no notice despite the potential consequences.

2019

SEC Policy Against Mandatory Arbitration Faces Challenge
By Mark Kantor – December 11, 2019
There have been several attempts over the years by business interests to change the policy, but those efforts have been unsuccessful in the face of strong political pushback.

California Supreme Court Rules on Timing for Requesting Arbitration
By Carolyn G. Burnette and Casey M. Curran – October 31, 2019
The court held that requests for costs under California Code of Civil Procedure section 998 are timely if raised within 15 days of an arbitrator’s final award.

Connecticut’s Evolving Jurisdiction Issues in Construction Arbitration
By Raymond A. Garcia – October 31, 2019
A review of the progressive erosion of the finality of arbitration decisions under the Connecticut Arbitration Statute applicable to disputes between contractors and the state of Connecticut because of perceived deficient notice of claim.

U.S. Supreme Court Dims the Lights on Plaintiffs’ Rights to Class Action Arbitration in Lamps Plus
By Melinda G. Gordon – October 31, 2019
The Court determined that class-wide treatment may not be inferred from ambiguous contract language and that, instead, agreements must expressly provide for class arbitration.

Online Arbitration: Avoiding the “Outer Limits” of Enforceability
By Erin Gleason Alvarez – October 31, 2019
A Ninth Circuit decision provides insights on contract principles governing online arbitration agreements. 

The Singapore Mediation Convention: What Will Be Its Impact?
By Iris Ng – October 8, 2019
Mediation will not eclipse arbitration anytime soon, but the Singapore Convention is a positive development for dispute resolution as a whole.

New Jersey Supreme Court Rights Course of Arbitrability
By Robert E. Bartkus – August 7, 2019
The court ruled that arguments of bait-and-switch fraud or of agreements that were not “knowingly and voluntarily” signed and agreed to must be decided by the arbitrator.

Supreme Court Resolves Circuit Split Regarding FAA’s Section 1 Exemption
By P. Jean Baker – May 23, 2019
A court must decide if an employment contract is subject to the exemption of transportation workers, and “independent contractors” fall within the scope of the exclusion.

Third-Party Arbitration Summonses: Some Helpful Practice Pointers
By Stephen P. Gilbert – May 23, 2019
A court rebuffed a variety of attacks on summonses issued by an arbitration panel and on the court’s jurisdiction.

Ambiguity in Final Award Is Exception to Functus Officio Doctrine
By Sunu M. Pillai – May 23, 2019
The Second Circuit joined the Third, Fifth, Sixth, Seventh, and Ninth Circuits in adopting an exception to the doctrine where the arbitral panel is clarifying an ambiguous award.

Unintended Consequences of Badly Drafted Arbitration Agreements
By P. Jean Baker – May 23, 2019
Recent court decisions highlight the need for counsel to carefully draft or review arbitration agreements to ensure a client obtains the dispute resolution process the client really wanted.

Proposed Amendments to the Arbitration Regime in India
By Naresh Thacker and Ria Dalwani – May 15, 2019
The Arbitration and Conciliation (Amendment) Bill, 2018 seeks to align itself with widely recognized arbitration practices and carve out a foothold for institutional arbitration.

New Jersey Refuses to Enforce Arbitration Agreement
By P. Jean Baker – March 12, 2019
There was no “meeting of the minds” because the parties did not understand the rights under the arbitration agreement that ostensibly foreclosed the plaintiff’s right to a jury trial.

New Jersey Court Puts Brakes on Arbitration after Car Deals Are Called Off
By Shira Forman – March 12, 2019
Appellate court finds that, because the parties rescinded their purchase agreement, their agreement to arbitrate all disputes is rescinded too.

Circuit Split Widens over Waiver of FINRA Arbitration Rights
By Beth Graham – March 12, 2019
Four circuit courts of appeals are split over whether a forum selection clause related to “all actions and proceedings” encompasses FINRA arbitration.

Understanding Prima Paint’s Severability Rule
By Charles E. Harris II – March 12, 2019
This article provides a detailed explanation of a basic, but often misunderstood, rule under substantive federal arbitration law, Prima Paint’s “severability rule.”

U.S. Supreme Court Justices Unanimous on Threshold Arbitrability Issue
By Melinda G. Gordon – March 12, 2019
A unanimous Court finds the “wholly groundless” exception to arbitration agreement inconsistent with Federal Arbitration Act and Supreme Court precedent.

Right to Compel Non-Parties Differs for Domestic and International Disputes
By James Reiman – February 20, 2019
These differences especially impact the ability to compel the arbitration of a third-party through joinder.

An Arbitration Agreement Must Identify the Forum and Rules
By Robert E. Bartkus – January 29, 2019
A New Jersey court has upended the parties' intention to arbitrate their disputes unless their agreement provides for a process for making those determinations.

Termination Provisions May Defeat Arbitration
By Robert E. Bartkus – January 3, 2019
New Jersey trial court refuses to compel arbitration on the grounds the contract had, by its terms, “expired” before the dispute arose.

Vacating an Arbitration Award for Lack of Disclosure by the Arbitrator
By Sunu M. Pillai – January 3, 2019
Three recent cases from the Second, Eighth, and D.C. Circuits show that, to vacate an award for evident partiality, a relationship between the arbitrator and one of the parties must be more than trivial.

Litigate Today, Arbitrate Tomorrow? Not So Fast, Big Business!
By Alexander Bachuwa – January 3, 2019
The Eleventh Circuit has held that companies that have gone down the path of litigation cannot pivot to arbitration because they unilaterally change their terms of service.

California Court Holds Parties May Not Contract Around Hague Convention
By Jiyun Cameron Lee – January 3, 2019
Parties to international contracts should proceed cautiously before relying on contractual service of process provisions that were designed to avoid the convention.

2018

How Broadly Should You Draft an Arbitration Clause?
By Carl Ingwalson – December 13, 2018
To be sure certain kinds of claims are or are not arbitrated, make the contract you draft very clear and direct in expressing that intent.

Vienna International Arbitral Centre Revises Its Rules
By Valentina Wong and Alexander Zollner – November 28, 2018
A clear and slim set of arbitration rules and a reasonable cost regime that meets the needs of arbitration users.

Canada Readies Itself for a Larger Role as a Seat for International Arbitration
By Melinda Jayson – October 10, 2018
Key provinces have revised statues to attract businesses seeking a site for international dispute resolution.

Epic Systems Corp. v. Lewis: The Reach of the FAA Remains Unchanged
By Sheila J. Carpenter – September 11, 2018
Arbitration agreements must be enforced if the objection to arbitration is due to the nature of the arbitration rather than the traditional grounds for revocation of any contract.

Swimming Against the Tide? “Evident Partiality” of a Party-Appointed Arbitrator in the Second Circuit
By Conna A. Weiner – September 11, 2018
The court recently defined a new, more forgiving standard for assessing nondisclosures by party-appointed arbitrators.

Arbitrator Authority to Compel Production of Documents from Third Parties
By Sunu M. Pillai – September 11, 2018
A circuit split exists on the question of arbitrators’ authority to compel prehearing document production from third parties.

Fourth Circuit: Active and Protracted Litigation of Claims Waives Compulsory Arbitration
By Quinton M. Herbert – September 11, 2018
In Degidio v. Crazy Horse Saloon & Restaurant, the court recognized that the FAA is not without limitation.

The Difference Between Litigation Advocacy and Mediation Advocacy
By Edmund J. Sikorski Jr. – September 11, 2018
Mediation advocacy is simply the developed art of persuasion.

Trump as a Maximalist
By John Bickerman – August 28, 2018
A short analysis on the President’s negotiation style.

Does Summary Judgment in an Arbitration Proceeding Avoid Delays and Expenses—Or Add to Them?
By Charles F. Forer – June 13, 2018
Does an arbitrator have the author to grant a summary judgment motion?

The Casual Arbitration Agreement?
By Sheila J. Carpenter – June 6, 2018
A quick email can create an agreement to arbitrate. On the other hand, an oral agreement relating to arbitration can be problematic.

Defining Finality: What Constitutes a Final Arbitration Award
By Christian J. Bromley – June 6, 2018
The Fourth Circuit recently articulated a definition of what constitutes a "final" arbitration award under the limited grounds for vacating awards in section 10 of the Federal Arbitration Act.

On Remand, Second Circuit District Court Vacates Arbitrator's Certification of an Opt-Out Class
By P. Jean Baker – June 6, 2018
The decision is the first to apply Justice Alito's concurrence in Oxford Health Plans in striking down certification of an opt-out class based on the due process rights of the absent class members.

Arbitration Agreement Allowing for De Novo Review of an Award Deemed Unenforceable
By Melinda G. Gordon – June 6, 2018
The Tenth Circuit determines that an arbitration agreement allowing de novo review of awards is unenforceable pursuant to the Supreme Court decision in Hall Street Associates.

The Convergence of Agency Action and Administrative Review in Regulating Arbitration
By Gary C. Norman – June 6, 2018
A clash between a federal agency and Congress spotlights the complicated nature of federal rulemaking and the extent to which it impacts dispute resolution on the spectrum of the public policy process.

New Jersey Holds That Rescission Defeats Arbitration
By Robert E. Bartkus – May 24, 2018
The decision is both interesting and troublesome, especially because it is precedential and binds lower courts.

How the U.S.'s Stance Towards the WTO May Have Complicated Its NAFTA Negotiations
By Maria Puppo Martinez – April 12, 2018
Recently the United States has been expressing strong disapproval of NAFTA's Chapter 19, citing sovereignty issues, among other criticisms.

Young Lawyers: The Danger of Raising Baseless Arguments to Evade Arbitration
By Charles E. Harris II – March 26, 2018
An attorney was sanctioned for a flood of frivolous arguments seeking to duck arbitration, a sanction affirmed by a unanimous Seventh Circuit panel.

Summary Disposition in Arbitration
By John A. Shope and Diana Tsutieva – March 26, 2018
Summary determination procedures are now a staple feature of most international and domestic arbitration rules, and courts will not vacate an award simply because it was issued on a summary basis.

Federal Mediation Privilege—How Far Does It Go?
By Sheila J. Carpenter – March 26, 2018
Practitioners expect that their communications with a mediator will be confidential but how far does that confidentiality extend beyond the mediation conference itself?

Threat of Sanctions on Counsel Who Employed "Scorched Earth" Tactics
By P. Jean Baker – March 26, 2018
Counsel engaged in multiple failed attempts to vacate an arbitration award, including asking a California court to countermand a final decision of the Seventh Circuit.

Ten Arbitration Trends Of 2017
By Liz Kramer – January 25, 2018
2017 was a big year in arbitration law.

2017

NLRB Dynamics and the Potential Impact on Securities Class Actions
By Mark Kantor – December 11, 2017
This dispute is a reminder that many aspects of U.S. arbitration are now a partisan political issue.

Kindred Nursing Centers L.P. v. Clark: Flouting the Court's Precedents or Contract Defenses?
By Marcia L. Adelson and Joan D. Hogarth – November 28, 2017
Kindred covertly challenges the long-standing holding that arbitration agreements are contracts under the FAA and is rejected under the Court's equal treatment rules.

Supreme Court Hears Arguments on Class Action Waivers
By Laura M. Wong-Pan – November 28, 2017
A decision for either side will have widespread impact.

International Commercial Mediation: Brief Update on Developments in Enforceability
By Erin Gleason Alvarez – November 28, 2017
The new framework in New Jersey for enforcing settlement agreements achieved through international mediation.

Clarification—A Valid Exception to Functus Officio
By Sarah Miller Espinosa – November 28, 2017
Clarification of an ambiguity in the remedy portion of an arbitral award may be appropriate.

Second Circuit Questions Arbitrator's Authority to Bind Absent Members to Class Arbitration
By Melinda G. Gordon – November 28, 2017
The court overturned a district court decision affirming the arbitrator's decision.

Discovery Process of Stanford Ponzi Scheme Not Fundamentally Unfair
By James Reiman – October 18, 2017
Failure to conduct in camera review and erroneous denial of admission of documents is not grounds for vacatur.

Reversal of Arbitration Awards: A Potpourri of Cases
By Sheila J. Carpenter – August 29, 2017
In New Hampshire, "plain mistake" is a permitted ground for seeking relief from an award.

A Primer for International Arbitration Specialists: 28 U.S.C. Section 1782
By Nicole Silver, Christine Orlikowski, and Jeff Johnson – August 29, 2017
Section 1782 actions are effective tools in receiving American-style discovery from experts testifying in foreign proceedings.

Gomes v. Karnell: Attorney's Email with Essential Terms Binds Client to ADR
By Quinton M. Herbert – August 29, 2017
Valid contract formation requires a meeting of the minds.

Exercise Caution When Relying on Electronic Arbitration Agreements
By Joel M. Everest – August 29, 2017
Courts are split on the sufficiency of electronic notice of arbitration provisions.

Arbitration in Belgium
By Alexander Hansebout – July 24, 2017
A primer on the laws of this arbitration-friendly country, which recently amended its Arbitration Act.

After a Business Fails to Pay AAA Fees, N.J. Consumers May Litigate
By P. Jean Baker – May 22, 2017
In a case of first impression, the failure to pay constitutes a material breach of the agreement, thereby allowing litigation of the dispute.

Litigation Funding: Are These Costs Recoverable in Arbitration?
By Jim Reiman – May 22, 2017
Guiding principles for arbitrators or panels in reaching their decision.

Young Lawyers: The Nuts and Bolts of Arbitration from Preliminary Hearing Through Award and Post-Award Motions
By Kelly Turner – May 22, 2017
To obtain the benefits of commercial arbitration, understand the process and how it differs from litigation.

International Arbitration in Switzerland: The Basics in a Nutshell
By Daniel Hochstrasser and Isabelle Oehri – May 22, 2017
Discover why Switzerland's regulatory framework makes it a preferred venue for international arbitration.

A Mediator's Perspective on Probate and Trust Resolution
By Edmund J. Sikorski Jr. – May 22, 2017
Estate and trust-related mediation is superior to litigation for resolving family disputes.

Arbitral Legitimacy in a Post-Truth Society
By S.I. Strong – April 11, 2017
Fortunately, interdisciplinary research describes how to combat the problems associated with the modern legal and political climate.

Third Circuit: Futility Avoids Arbitration Waiver
By Sheila J. Carpenter – March 16, 2017
Rights to demand individual and class arbitration are separate rights, may be separately waived, and require separate futility analyses.

Did the Seventh Circuit Expand the Grounds for Vacating an Arbitration Award?
By Charles E. Harris II and Joseph M. Snapper – March 16, 2017
A divided Seventh Circuit vacated an arbitration award on the ground that the arbitrators exceeded their authority by ignoring the terms of the parties' agreement.

SCOTUS Reviewing Decision Invalidating Nursing Home Arbitration Agreements
By Laura Wong-Pan – March 16, 2017
The Court is considering the enforceability of pre-dispute arbitration agreements binding nursing home residents to submit injury and wrongful death claims against the facility to arbitration.

Impracticability of Clause Mandating 30-Day Resolution after Arbitrator Selection
By Hui Liu – March 16, 2017
A North Carolina federal court rejected an impracticability argument because the arbitration clause incorporated AAA rules providing the panel with discretion to adjust a hearing schedule.

Beware the Enforceability of Arbitration Clauses in Wills and Trusts
By Joseph D. Kropp – January 4, 2017
The arguments for and against enforcement, and recent cases.

2016

A Party Unable to Pay and Proceed with Arbitration May Still Meet Contractual Arbitration Requirements
By Komal Chokshi – December 5, 2016
The Ninth Circuit decided that, even when there is no award or resolution, the arbitration had "been had" in compliance with the FAA.

The AAA's New "À La Carte Services": Gaining Access to Administrative Support Without Filing a Case
By P. Jean Baker – December 5, 2016
Parties can now obtain stand-alone administrative assistance by the AAA on an as-needed basis.

Multiparty Mediation
By Edmund J. Sikorski, Jr. – December 5, 2016
Agreed-upon organization and management of the process is the linchpin of success.

Young Lawyers: The Nuts and Bolts of Arbitration from Filing the Demand Through Arbitrator Selection
By Kelly Turner – December 5, 2016
Key to maximizing the benefits is to understand how arbitration differs from litigation.

The Coming Storm: Federal Regulations that Attempt to Limit Arbitration
By Mark Kantor – November 9, 2016
The disputes about the general regulatory authority of federal agencies are now crystallizing in a number of industries.

Eleventh Circuit Makes Vacatur Challenges More Difficult
By Jaya Sharma – August 22, 2016
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 – August 22, 2016
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 – August 22, 2016
"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 – August 22, 2016
Such suits put the plaintiff and its counsel at risk for sanctions.

Settling Raiding Cases in the Securities Industry 
By Dana N. Pescosolido – August 22, 2016
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 – June 1, 2016
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 – June 1, 2016
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 – June 1, 2016
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 – June 1, 2016
It depends on the federal circuit providing a response.

Has the CFPB Asked the Right Questions about Consumer Arbitration?
By Lisa Renee Pomerantz – March 9, 2016
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 – March 4, 2016
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 – March 7, 2016
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 – March 7, 2016
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 – March 7, 2016
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 – March 7, 2016
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 – March 7, 2016
New rules authorize arbitrators to grant dispositive motions, impose sanctions, and employ other procedures to streamline and expedite proceedings.

2015

Essential Attributes of an Effective Mediator
By Edmund J. Sikorski, Jr. – December 18, 2015
Impasse avoidance techniques in monetary claims.

Clawback Suits Are Not Categorically Exempt from Arbitration under FAA
By Quinton M. Herbert – November 11, 2015
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 – November 11, 2015
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 – November 11, 2015
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 – November 11, 2015
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 – November 11, 2015
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 – November 11, 2015
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 – August 19, 2015
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 – July 30, 2015
Successful requests for judicial intervention have become even rarer.

Developments on Judicial Review under the FAA after Hall Street
By Theodore K. Cheng – July 30, 2015
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 – July 30, 2015
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 – July 30, 2015
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 – July 30, 2015
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. – June 19, 2015
Follow the BSA motto: Be prepared.

What Should You Consider if You Plan to Negotiate By Email?
By Joan Sterns Johnsen – May 18, 2015
Guidance on best practices for email communications.

Evident Partiality: Know It When You See It
By Sheila J. Carpenter – May 12, 2015
The failure rate for petitions to vacate arbitration awards based on "evident partiality" is extraordinarily high.

Arbitration Deadlines Are Real Deadlines
By Angela Foster – May 12, 2015
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 – May 12, 2015
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 – May 12, 2015
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 – May 12, 2015
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 – April 27, 2015
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 – April 21, 2015
A look at ADR's effectiveness in commercial disputes involving insurance.

Fascinating Highlights of the CFPB Arbitration Study
By Liz Kramer – March 25, 2015
Highlights of a comparison study between AAA consumer arbitration and consumers' federal court data.

2014

Pre-Award Removal of an Arbitrator
By Sheila J. Carpenter – September 5, 2014
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 – September 5, 2014
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 – September 5, 2014
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 – September 5, 2014
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 – June 16, 2014
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 – June 16, 2014
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 – June 16, 2014
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 – June 16, 2014
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 – June 16, 2014
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 – February 6, 2014
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. – February 6, 2014
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 – February 6, 2014
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 – February 6, 2014
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. – February 6, 2014
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.

2013

Conference Session Recap: Mass Torts Settlement
By Bonnie Mayfield – September 24, 2013
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 – September 24, 2013
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.

The Supreme Court's New Arbitrability Options
By Monique Sasson – September 24, 2013
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 – July 31, 2013
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 – September 6, 2013
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 – August 8, 2013
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 – June 24, 2013
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 – June 24, 2013
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 – June 24, 2013
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 – June 24, 2013
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 – April 3, 2013
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 – March 27, 2013
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 – March 27, 2013
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 – March 27, 2013
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 – March 27, 2013
Eighth Circuit refuses to invalidate two arbitration agreements.

Illinois Supreme Court Upholds Arbitrator's Decision on Employee Reinstatement
By Mitchell Marinello – March 13, 2013
The ruling demonstrates how an arbitrator can protect their award by explaining how the contractual terms and evidence support the award.

2012

Eleventh Circuit Holds Foreign Arbitration Panel Is a Tribunal
By Elizabeth C. Wolicki – December 21, 2012
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 – December 21, 2012
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 – December 21, 2012
Each method of resolving disputes has strengths and weaknesses.

Choosing the Right Mediator
By Bruce A. Rubin – December 21, 2012
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 – December 21, 2012
Few of us applied to law school so we could excel at mediation.

When Amendable Arbitration Clauses Are Illusory
By Brian E. Cohen – October 24, 2012
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 – August 14, 2012
The Supreme Court has been quite clear, but the message continues to meet resistance.

Conditions Precedent to Commencing an International Arbitration
By Manjit Gill – August 14, 2012
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 – August 14, 2012
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 – August 14, 2012
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 – May 10, 2012
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 – May 10, 2012
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 – May 10, 2012
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 – May 10, 2012
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 – May 10, 2012
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 – January 19, 2012
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 – January 19, 2012
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 – January 19, 2012
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 – January 19, 2012
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 – January 19, 2012
Applying issue preclusion to arbitration has proven difficult and unpredictable, complicated in part by perceived differences between arbitration and litigation.

2011

Seventh Circuit Allows Arbitrator to Hear Dispute over Original Award
By Adam Waskowski – October 19, 2011

Discovery Subpoenas in Arbitration—Due Care Required
By David T. Lopez – October 19, 2011

When Is Arbitration a Tribunal under 28 U.S.C. § 1782?
By Jonathan Straw – October 19, 2011

Ninth Circuit Departs from Fifth Circuit's Prohibition of Ex Parte Conduct by Arbitrators
By Olivia St. Clair – October 19, 2011

Negotiation Basics for Young Lawyers
By P. Jean Baker – October 19, 2011

Does a Federal Arbitration Privilege Apply in Arbitration Proceedings
By P. Jean Baker – August 16, 2011

How to Avoid an Insurance Carrier's Post Hoc Veto Power
By Randal L. Hutson – August 16, 2011

The Supreme Court Erects Another Roadblock to Challenging Arbitration
By Rebecca Callahan – August 16, 2011

Ten Things Lawyers Love/Hate about Mediators
By Jobi Halper – August 16, 2011

A Blow to Class Arbitration
By Brian T. Feeney – August 16, 2011

Young Lawyers: Selecting the Right Mediator
By P. Jean Baker – August 16, 2011

Chess Clock Arbitration
By Raymond A. Garcia, Nicole Liguori Micklich, and Michael V. Pepe – June 22, 2011

NLRB Strikes Down Employer's Mandatory Arbitration Policy
By Kelly Petrocelli, Gerald F. Lutkus, and William A. Nolan – June 20, 2011

Private Mediation: A Quick Checklist
By Kelly Petrocelli, Gerald F. Lutkus, and William A. Nolan – June 20, 2011