Much has been written about the global development of mediation, but more should be said about the important questions that should be confronted by practitioners, policymakers and users.
Mediation is now well-established in Australia particularly in the commercial jurisdictions of the states and territories. However it is still viewed as an unwelcome visitor by many in the legal profession and the judiciary.
This article asks: Why a continent, considered by many to have been the springboard for the unprecedented modern growth in arbitration in Europe and Asia recently went through a significant increase in the number of international arbitrations?
(1/08/16)Brian Jerome, Jeffrey Stern
This article reflects on the current and timely issue of hidden arbitration clauses in contracts, and a rebuttal to the recent NY Times article series which was extremely partisan and put arbitration and arbitrators in a very poor light. The article more accurately positions arbitration as an important and helpful alternative to litigation.
Following are two interesting and recent federal court rulings related to arbitration.
The “Deflategate scandal,” in which the New England Patriots and their star quarterback, Tom Brady, were accused of deflating footballs was a very hot topic among American football enthusiasts. It has also become a case study on how the arbitration process worked properly.
Article 399A included in the Criminal Law of People’s Republic of China, provides for criminal liability to arbitrators for “perversion of law” (Wangfa Zhongcai Zui). The provision has been a Part of the Criminal Law since 2006. However, on 24 June 2015, the Supreme People’s Court (‘SPC’) and the Supreme People’s Procuratorate (SPP) of China have undertaken the task of interpreting Article 399A (Further information about the process may be found here).
One topic which stimulated some forthright conversation recently was the use of hybrids whereby a mediator takes on the role of arbitrator if the matter does not resolve by mediation. In particular, we discussed the transition from mediator to arbitrator with the consent of the parties.
The AMA procedure is not the end of the line. Enforcement of settlement agreements is cited as a crucial aspect and the AMA procedure is not completely geared up for it looking at its many downsides. It would be more desirable and feasible to prepare a uniform model provision on enforcement of mediated settlement agreements that would be universally acceptable.
Sports is a highly-competitive culture and that same commitment and drive it takes to get results can also be a strength so strong, too strong in fact, that it becomes a weakness in minimizing or resolving very costly conflicts, whether that be relationally, performance wise or financially.
Recently arbitration has been considered or mandated by many employers in response to increasing cost associated with employment litigation (Shea, 2015). Arbitration in workplace dispute is mostly used to determine bridge of collective agreement and grievances arising from terms and conditions of employment as contained in the collective agreement.
Musings of a Long Time Arbitrator reflects on the positive and challenging aspects of serving as a neutral, in a manner both realistic and humorous. Similar practitioners will be able to immediately relate, and those that seek or utilize the services of ADR providers will get a direct look at the implications of a neutral’s daily reality.
As wars, religious and political differences, and international problems such as global warming, environmental degradation and poverty expand their reach, importance and severity, stimulating mass migrations and deepening social tensions, we are increasingly forced to recognize that military solutions cannot succeed; that legal processes take too long to implement; and that diplomacy does not reach deep enough into the ranks of those who are drawn to violence.
(4/14/15)Marvin E. Johnson
Historically, the three main dispute resolution methods used in the United States have been violence, avoidance, and litigation. Today, there are a variety of additional processes that can be used to foster the resolution of disputes. Many of these processes began gaining popularity in the early 1970s as a result of frustration with the varied human and financial costs associated with litigation.
As arbitrator I often glance through the witness statements early-on in order to get a more direct “feel” for the case, its players and its history, as well as for planning purposes.
A quarter century ago many believed we were experiencing a revolution in the way conflict was managed. Nowhere was this more noticeable than in the construction sector, the primary focus of my practice as an advocate and dispute resolution professional.
Given the creativity of ADR practitioners and scholars, the best of ADR will continue to grow and expand to new areas of practice, and unheard of new ADR practice will emerge.
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.
What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.
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” with common thought about problematicenforcement of arbitral awards in Ukraine. However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: statistical report, 2011-2012”
(9/22/14)Michael Leathes, Deborah Masucci
Among the early words of wisdom expressed by Sherlock Holmes was this classic line: "I never guess. It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts." And so it is with dispute resolution. There is a paucity of reliable statistics out there to enable users of dispute resolution services, as well as advisers, providers, educators, adjudicators and policymakers, to understand how best to prepare and steer ourselves for the future.
Well-known dispute resolution professional Ken Feinberg speaks on high profile dispute resolution and its relation to mediation.
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.
(8/01/14)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.
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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.