5/17:Charles Schwab Drops Forced-Arbitration Clause From Contracts
After AT&T somehow convinced the U.S. Supreme Court that a couple of sentences buried toward the end of a contract that maybe .05% of customers ever think about reading was all that was needed to preempt class-action lawsuits, many large companies have rushed to pack their user agreements and licenses with clauses that force customers into arbitration. But, stuck in a battle with an industry regulator, the folks at Charles Schwab have decided to go another way, announcing that they have gotten rid of their arbitration clause… for now. read
5/17:Amazon wants seller lawsuit to go to arbitration
Amazon.com’s response to two former sellers complaining about tied-up payments can be summed up as: We’ll see you in arbitration. Seattle-based Amazon, in a 28-page document filed in U.S. District Court in Seattle, asks Judge Marsha Pechman to move the case to arbitration. The two sellers claimed in a lawsuit filed in March that Amazon refused to pay them for more than 90 days after it shuttered their accounts. They want full restitution of “monies wrongfully obtained,” plus interest and other unspecified damages.
In its response, Amazon noted that when the plaintiffs signed up to sell products on its website they agreed to arbitrate any disputes. The suit, which seeks class-action status, says Amazon routinely holds sellers’ money longer than allowed to rack up interest and “reap many tens of millions of dollars annually.” read
5/14:Arbitration Fairness Act of 2013 Introduced in Congress
As discussed by the American Association for Justice, the new law seeks to end the abusive practice of so many large corporations, including nursing home conglomerates, that seek to insulate themselves from legal accountability with forced arbitration. As the AAJ summarized, the law is critically needed, because when it comes to arbitration, “The process is secretive, costly and rigged so that corporations cannot be held accountable. By removing access to justice, it grants corporations a license to steal and violate the law.” read
5/06:JPMorgan, UBS May Try Mediator in $2 Billion Mortgage Lawsuit
A judge handling a $2 billion lawsuit against banks including JPMorgan Chase & Co. (JPM) and UBS AG (UBSN) brought by the former Thornburg Mortgage invited their lawyers to file statements on the possible appointment of a mediator to resolve the dispute, according to a federal court filing in Baltimore. read
5/06:AU: The times are a changing – when it comes to selecting a mediator
The selection criteria for in-house counsel choosing mediators is 'a-changin'. A survey of in-house dispute resolution counsel from 76 arge international corporations focused on what criteria the counsel used when selecting a mediator. The results highlighted that almost half of the counsel who responded to the survey don't consider the legal expertise of the mediator as a relevant factor when selecting a mediator. The majority of respondents felt that the core area of expertise of the mediator was a more important factor. read
5/06:Ireland: Mediation is best way to deal with company law disputes - judge
Mediation is the only way forward for "messy and expensive" company law disputes according to the senior judge who manages corporate divorces. High Court judge Ms Justice Mary Laffoy said that company law disputes, often between longstanding friends and siblings, as well as husbands and wives, are highly expensive and time consuming, with many lasting for years. "Mediation has application across the board, and I think most judges would welcome a mediation act" said Judge Laffoy. read
5/06:South Africa: Debt mediation working for the consumer
Johannesburg - Over 70% of debt mediation cases resulted in a positive outcome for consumers in the first quarter of this year, the National Debt Mediation Association (NDMA) says. "Each consumer's case is unique and requires a different solution, and the ability of the NDMA to provide expert advice and guidance has benefited consumers immensely," CEO Magauta Mphahlele said in a statement. The NDMA closed 863 cases in the first quarter of the year, up from 679 in the last quarter of 2012. read
4/30:Lawmakers urge US SEC to bar forced Wall Street arbitration
A group of 37 federal lawmakers urged U.S. securities regulators to prohibit Wall Street brokers from forcing customers to sign away their legal right to sue. read
4/30:IPO mediation service is relaunched
The UK Intellectual Property Office has recently launched a new mediation services to help businesses resolved disputes faster and more cheaply.
The move follows the Hargreaves report which identified reasons why an earlier mediation service was rarely used and assessed how it could be improved to meet the needs of businesses. The service will now offer a greater choice of mediation options including telephone sessions and will provide a wider list of specialist accredited mediators and a more flexible fee scale.
Disputes from infringement of an IP right, issues about IP licensing, copyright licensing issues and patent entitlement will all come within the ambit of the services. read
4/29:Taking advantage of ADR in the entertainment industry
IP cases in the entertainment industry are great candidates for mediation and arbitration. The importance of secrecy and privacy, The need for expertise and the flexibility that ADR offers are three reasons why intellectual property and entertainment practitioners should use ADR as much as possible. read
Nothing makes you more tolerant of a neighbor's noisy party than being there.
ODR Theory and Practice - Chapter 15: ODR and Ombudsmanship (5/13/13) Frank Fowlie This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
Managing Business Risk (4/26/13) John Sturrock Managing business risk can be done through effective negotiation and conflict management. Mediators can help to manage that business risk by nipping things in the bud – and resolving difficult disputes.
Disputes: A Clash of Imperfect Ideas (4/12/13) Cinnie Noble It is common in the midst of conflict that we become more assertive about our perspective – especially when the other person is equally or more assertive about hers or his. One or both of us may push our viewpoints to the extent that things escalate and stronger feelings evolve – accompanied by even more push back. It is as though both of us are convinced and have to convince the other that our view is the perfect and correct one.
ODR Theory and Practice - Chapter 7: ODR and E-Commerce (3/23/13) Aura Esther Vilalta Cyberspace has become a realm of commerce and a market with various kinds of transactions using acronyms such as: C2C, B2C, B2B, C2B or M2B. It removes traditional barriers between “offerors” (producers, sellers, etc) and “offerees” (clients, users, consumers.). Time, geographical distance and language are no longer obstacles to trade and, consequently, cross border disputes have increased. Online Dispute Resolution (ODR) mechanisms have emerged as a natural response to the need for new dispute resolution systems.
Mediation Case Law Video: Handwritten Agreement (2/08/13) James Coben In Heaven & Earth, Inc. v. Wyman Properties Limited Partnership, the appellate court enforced a handwritten mediated settlement of lease extension by night club against challenge that parties' failure to reach full agreement on limitations and notice requirements for sound checks was a missing essential element that precluded enforcement.
What Did You Just Say? (1/25/13) Barbara Brown Barbara Brown discusses how to take charge of your negotiations to communicate what you really mean (and want). In negotiations that are often about money, she discusses how to add value based upon J. . Anderson Little’s Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, published by the American Bar Association in 2007.
White Collar Crime and Mediation: A Discussion Document (11/30/12) Clive Lewis This article presents a discussion about the potential for mediation to be utilized as a suitable option for cases of white collar crime. Punishment of white collar crime in the workplace has traditionally been dealt with by internal disciplinary procedures prior to the police and then the courts, but it has become apparent that not all cases may be suitable for the legal system. Naturally, criminal proceedings and custodial sentences are the only option in some cases, but, with prison numbers at record levels, penal servitude should no longer be seen as the only option when it comes to lesser crimes. 1 Comment
CIETAC Administered Arbitrations: Internal Conflicts Cause Uncertainty (11/10/12) Peter Bert Disputes between the China International Economic and Trade Arbitration Commission (“CIETAC”) and its sub-commissions in Shanghai (“CIETAC Shanghai”) and Shenzhen (“CIETAC South China”) currently cause significant legal uncertainty. These internal issues at CIETAC create risks for parties that have agreed arbitration proceedings with these local sub-commissions in their contracts, or are planning to do so.
Citizen Participation, Media Hype and… Dogs (8/10/12) Aik Kramer A while ago, I facilitated a public meeting about dogs in the municipality of Zandvoort (Holland), a fishermans village that, over the years, has transformed itself into a tourist beach resort. It houses approximately 16.000 inhabitants and, with the seasons, has a flow of millions of tourists each year. There are hotels, cafes, clubs, a race-circuit, and of course, there’s the beach itself.
Mediation in Sports Disputes (7/16/12) Travis Bell The ease and flexibility of the mediation process, the unique qualities of trained mediators and the high success rate of mediation in the past proves that mediation is the perfect answer for resolving various disputes in sports.
Consumer Arbitration Roundtable Summary Report (7/09/12) Tom Stipanowich This Summary Report and its attachments: 1) summarize the discussions at the Roundtable and the Planning Committee’s conclusions; 2) provide an overview of related empirical studies and the range of dispute resolution programs and processes available to resolve consumer disputes; and 3) include an annotated list of key resources. Several work groups have been formed to carry on the work of this National Roundtable.
ADR Considered an Active Practice in Federal Courts (7/02/12) Chris Poole A survey of courts’ local rules, general orders, internal operating procedures and other online and written sources shows that 34 of the 94 district courts authorize multiple and distinct forms of ADR, including mediation, arbitration or early neutral evaluation (ENE). Of these courts, 14 authorize three or more distinct forms of ADR. An additional 27 districts authorize mediation only, while 25 districts provide general authorization to use ADR, authorize settlement conferences or authorize both.
Canada Allows Banks to Use Private Mediators in Client Disputes (5/15/12) Keith Seat
Canada has decided against forcing banks to use the Ombudsman for Banking Services and Investments (OBSI) and will provide new regulations permitting them to hire private mediators to resolve client disputes. OBSI was created in 1996 to handle complaints against banks and since 2002 has also been responsible for resolving investment complaints; investment dealers are still required to use OBSI. The issue arose after Canada’s two largest banks, the Royal Bank of Canada and Toronto-Dominion Bank, withdrew from OBSI in favor of private mediation and other banks were expected to follow. However, some consumer advocate groups and regulators are concerned that if banks hire private mediators the independence of the mediators could be compromised.
World Bank Analyzes ADR Benefits (3/12/12) Keith Seat
A World Bank paper discusses the effectiveness of alternative dispute resolution, looking at the empirical benefits of mediation and other forms of ADR and noting the need for additional studies outside the U.S. The short paper, by the Investment Climate Impact Project, focuses on measurable issues of cost savings and timing. It also discusses less measurable impacts, such as improving business relationships and problem-solving skills, reducing pressure on courts, and improving investors’ perceptions about the safety of business investments in emerging markets.
New International Tribunal Created for Disputes over Complex Financial Instruments (9/06/11) Keith Seat
The world’s first international conflict resolution group for disputes over derivatives and other complex financial instruments has been established as a non-profit under Dutch law and is based in the Hague. The group is the Panel of Recognized International Market Experts in Finance (P.R.I.M.E. Finance). While a panel of experts is already on its newly-launched website, the group will begin offering mediation and arbitration services in January 2012. The organization states that it benefits from various subsidies, so may be less expensive than other alternatives.
Efforts by Arbitrator to Mediate Dispute in China Taint Arbitration Award (7/12/11) Keith Seat
The High Court in Hong Kong refused to enforce an arbitral award from China because one of the party-appointed arbitrators acted as a mediator and met with a person connected with one of the parties to propose a settlement. Although the court found that lack of transparency and other concerns tainted the arbitral award, the court made clear that it was not rejecting the concept of med-arb, which is expressly permitted in Hong Kong and common in Asia.
eBay Resolution Center Up for Dutch Innovating Justice Awards - Needs Your Vote! (6/08/11) Colin Rule The largest Online Dispute Resolution platform in the world, the eBay and PayPal Resolution Center, is up for an award from the Dutch Innovating Justice competition. The final three candidates will be selected by online popular vote, so If you've got time, please visit the program site and vote for “Modria: The eBay/PayPal Dispute Resolution Center.”
WIPO Developments Include Creative Barcodes (5/25/11) Keith Seat
The World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center will provide mediation services for Creative Barcode members; Creative Barcode is a new mechanism for facilitating safe disclosure of creative concepts and ideas in business deals and proposals by using barcoded files. In more traditional endeavors, some 2,700 cybersquatting cases were filed with the WIPO Center in 2010, setting a new record. The cases were handled by over 300 panelists in 49 countries in 13 languages. The WIPO Center also continues to handle significant numbers of intellectual property disputes.
'Jury Mediation' May Be Helpful in Some Disputes (5/17/11) Keith Seat
In a twist on mini-trials, “jury mediation” brings together typical jurors to receive a short presentation from the parties, including key documents and even witness testimony, after which the “jury” deliberates and provides its conclusions and reactions in conversation with a mediator and trial consultant. The goal is to decrease uncertainty and increase the information on which parties can make informed settlement decisions in mediation.
While recognizing that the parties’ franchise agreement provided that disputes must go through mediation prior to litigation, the federal court entertained plaintiff’s effort to maintain the status quo during mediation by seeking a preliminary injunction. However, the court denied plaintiff’s request after analyzing the factors required for a preliminary injunction.
Mediate Your Way to a Sale (4/18/11) Vivian Scott Sometimes trying to close a business deal feels more like a conflict than it does a negotiation. Rather than go head to head with a potential customer, consider using a few mediation skills instead