MED-ARB: The Best of Both Worlds or Just A Limited ADR Option? (Part Two)
Med-arb is the melding of two well-established processes for conflict resolution into one hybrid process. Mediation and Arbitration are used in conjunction with one another and, in the truest form of med-arb, the same third-party neutral plays the role of both mediator and arbitrator. In this paper, the term med-arb refers to this pure form that uses the same neutral, and is distinct from the common process where different neutrals are used in a mediation phase and an arbitration phase.
What the Supreme Court of India Got Right and What it Got Wrong
Niyata Samir Ghandi
The Kluwer Arbitration Blog published an outsider’s perspective on the decision of the Supreme Court of India which has been applauded by international practitioners around the world since it curbed the jurisdiction of Indian courts over an arbitration agreement supplementing the pro-arbitration jurisprudence coming from the SCI over the last two years. The writer has commented not only as an outsider but also and more particularly as a Civil Lawyer, proposing an excellent alterative to the court’s approach. However, it may be necessary to have an insider’s perspective on the judgment.
Understanding Each Party’s Power in Family Mediation-Arbitration: Why it is Critical
A recent Ontario Superior Court of Justice decision illustrates the need for clearer guidelines for “screening for power imbalances and domestic violence”, a mandatory component of Ontario family arbitration. It also demonstrates the benefits for parties, lawyers and arbitrators in understanding that some methods of screening are more effective than others; and in ensuring that screening is done in accordance with the best practices before the mediation in a mediation-arbitration.
Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play
Zachary Ulrich, Tom Stipanowich
The Straus Institute recently conducted two major surveys of dispute resolution professionals: a survey of experienced arbitrators with the cooperation of the College of Commercial Arbitrators, and a survey of experienced mediators with the cooperation of the International Academy of Mediators. These studies produced a wide array of new information on arbitrator and mediator practices and perspectives that we hope will contribute to debate and discussion on many current professional issues. We are presently writing these up. The first fruit of these studies is the just-completed article Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play, which leads off the new Yearbook on Arbitration and Mediation.
Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations
J. Ryan Lamare, Tom Stipanowich
As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including a further shift in corporate orientation away from litigation and toward alternative dispute resolution (ADR).
Lack of Consumer Interest in Binding Arbitration Agreements
This article takes a look into the Am. Exp. Co. v. Italian Colors Rest
Supreme Court ruling, attempted Congressional remedies, and current studies on the rights of consumers in regards to binding arbitration clauses.
Mediate is Top Ranked Mediation Website
Mediate.com is ranked the top mediation and dispute resolution website by Alexa in its February 1, 2014 global website rankings. In business since 1996, Mediate.com has over 15,000 searchable mediation articles, blog posts, news items and videos. Mediate.com also hosts the most used mediator directory and offers mobile friendly website development, professional promotional services and cloud-based case management systems.
The Spectre of Class Action Arbitration in Consumer Product Disputes
Class arbitrations have primarily been viewed as an instrument of the US legal system. However, given the international capability and procedural flexibility of arbitration, the scope that they offer for collective redress by consumers is attracting increasing interest.
Luanda Believes in Mediation as a Valid Dispute Resolution Approach
Between the 25th and the 29th of November of 2013, the CAAL, an Angolan arbitration dispute center based in Luanda, and Convirgente, with the support of the Angolan Bar Association and the Qualifying Assessment Program for Portuguese speaking countries represented by ICFML (Instituto de Certificação e Formação de Mediadores Lusófonos), organized a course on Mediation, in Luanda, Angola. The training purpose was to give participants the necessary skills to act as mediators in several types of disputes.
The Promise of International Commercial Mediation
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes.
Consistently Inconsistent: The Need for Predictability in Awards
In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
The Future of Financial Services Arbitration
Arbitration practitioners in Asia have long been used to seeing arbitration clauses as the prevalent form of dispute resolution in cross-border finance transactions. As other emerging markets (such as those in Africa) continue their rise, this trend looks set to spread to other regions. Within the EMEA (Europe, Middle East and Africa) region typically used as a business division within the financial services sector, it is only for intra-EU transactions where the old orthodoxy of court jurisdiction continues to hold strong.
Announcing Three New Online Dispute Resolution (ODR) Websites
Resourceful Internet Solutions, Inc. (RIS) and our flagship sites Mediate.com and Arbitrate.com are proud to announce the launch of three new online dispute resolution websites at:
The world of online dispute resolution is growing rapidly and at an accelerating pace based both upon purely online initiatives and because all mediators and arbitrators are now "online mediators and arbitrators." We all now use the internet extensively in nearly every case. We hope and trust that you will gain great value from our new ODR websites.
ODR and e-Arbitration – Trends & Challenges
Mohamed S. Abdel Wahab
This chapter is divided into five sections. In section 1, the author sheds
light on the conceptual framework of e-arbitration. In section 2, the issues pertaining
to the e- arbitration agreement are scrutinized. Section 3 focuses on e-arbitral
proceedings and section 4 addresses e-arbitral awards. Section 5 provides
an overview of some e-arbitration projects and initiatives. Finally, the author offers some
Can a Med-Arb Serve in Two Processes?
Med-Arb is a controversial hybrid of two processes in which parties first go to mediation, and if the process is not successful, they arbitrate. In the “pure” form, the same Neutral assists both processes. But how can an arbitrator who has held discussions with the parties satisfy the requirements of “impartiality” and be a “fair arbitrator?”
What Does the Fortune 1,000 Survey Portend for International Mediation?
A new study of dispute resolution practices in Fortune 1,000 corporations shows that many large companies are using binding arbitration less often and relying more on mediated negotiation and other approaches aimed at resolving disputes informally, quickly and inexpensively.
Supreme Court Decides Yet Another Arbitration Case
The decision offers no new law: it just reiterates and reaffirms fundamental principles of the Court’s FAA jurisprudence, including broad FAA preemption, separability, and the power of the arbitrators to decide the enforceability of contracts containing an arbitration clause.
Recognition of International Arbitration in Ukraine in Figures
Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not-entirely arbitration-friendly jurisdiction is “promoted” because of problematic enforcement of arbitral awards in Ukraine. However, in recent years the Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach.
Alternatives to Arbitration
Michael P. Carbone
The question whether arbitration is a good idea or not is constantly being debated. Those who believe that it is not a good idea should be aware that California law provides other alternatives to arbitration besides litigation.
Striving for Independence, Competence, and Fairness: A Case Study of the Beijing Arbitration Commission
The emergence in China of local arbitration commissions (“LACs”), and in particular their growing role as a forum of choice for dispute resolution, is a phenomenon that has received inadequate scholarly attention. This article intends to present an analysis of LACs based on a case study of the Beijing Arbitration Commission (“BAC”), for which the author worked as a part-time case-handling secretary.
Binding Mediation/Baseball Arbitration
Michael P. Carbone
This article explains one of the settlement options that mediators and clients can utilize. This option provides for binding mediation by including a hybrid dispute resolution process of binding arbitration.
What is Arbitration - Video
Jim McCartney, a Charter Arbitrator and Charter Mediator, talks about what arbitration is. He explains the process and the benefits to the clients. He says that the best way to think of arbitration is as a private court.
An Analysis of Dispute Resolution Mechanisms in the Corporate Governance Architecture of Ghana
Senyo M. Adjabeng
It is a concern for dispute resolution practitioners in Ghana that the Corporate Governance Laws of Ghana, which are largely obsolete and lag behind contemporary and international standards and practice of corporate governance, still defer to litigation as a primary dispute resolution process for resolving corporate and commercial disputes. A saviour is a new law, the Alternative Disputes Resolution Act, 2010 (Act 651), which has streamlined ADR processes in Mediation and Arbitration for handling such disputes.
Recent Developments in International Arbitration
Following are this month’s recent developments in international arbitration law published by the International Law Office (free registration is required to view the articles).
Real Estate Mediation and Arbitration
Jim W Hildreth
Why Litigate when you can Mediate? Today's consumer has other alternatives in a real estate dispute to avoid the cost and stress of litigation. Two of these alternatives are mediation and arbitration.
The Unfairness of Arbitration?
In the New York Times, Stanford Law Prof. Amalia Kessler has an interesting op-ed about consumer arbitration. The interesting thing about this piece is not its arguments against consumer arbitration but its historical take on arbitration that looks back past the FAA.
Stuck in Arbitration
YOU buy a cellphone, computer or car. You sign up for a credit card or open a retirement account. You apply for a job. In all these circumstances, you’re told that you must agree to dozens of terms and conditions, set forth in technical verbiage and tiny print. Eager to complete your purchase — or desperate to be hired — you ultimately sign without reading.
Straus Institute Conversation Series featuring Ken Feinberg (Video)
The Straus Institute for Dispute Resolution debuted a new “Conversation” series on November 14, 2011, as part of their 25th anniversary celebration. “Straus Presents: A Conversation with Ken Feinberg” featured one of the best-known figures in the field of alternative dispute resolution in a ninety-minute interview conducted by Straus Institute academic director and William H. Webster Chair Tom Stipanowich. The interview focused on Feinberg’s early involvement as special master mediating the Agent Orange cases and other mass tort claims, his role as special master of the September 11th Victim Compensation Fund, and his current oversight of the Gulf Oil Spill Fund.
2012: The Move to Online Dispute Resolution
Hon. Arthur Ahalt
As a new year begins there is always a clamor to know what is in store for the next 12 months. Some will look at last year and make a string of resolutions and predictions. While I do not pretend to be Carnac the Magnificent of Johnny Carson’s days, here is my take on the trends in 2012 that will shape ADR and ODR.
Federal Court Orders Arbitration of Claims in BP Oil Spill Case
As readers may already know, litigation surrounding the “Deep Water Horizon” oil spill is well underway. In a later twist, a federal trial court in Louisiana granted a motion to stay litigation between Anadarko and BP and ordered the parties to arbitrate pursuant to an arbitration clause found in their Joint Operating Agreement.
Customary Arbitration in an Evolving Africa
Click here for MORE ARTICLES
Just as I am beginning to settle back into my bourgeois American lifestyle, I wake up this morning to find this article in the Times on a Ghanaian chief who spends most of his year in New York overseeing a taxi operation with his wife.