Valentine's date? Arb Forum 2/14

Join us for the Alternative Dispute Resolution (ADR) Section of the Florida Bar's next Arbitrator's Forum on February 14, 2023 at 8 am EST live on Zoom. Invite a fellow arbitrator or litigator to this complimentary event on Valentine's Day as we speak to statewide practitioners about their preferences and practices. This month, we will discuss “What Arbitrators Need To Know About Remedies, Attorney's Fees, Punitive Damages, and More!” The Florida Bar ADR Section's standing Arbitration Committee instituted the forum series last year to create a community of better informed arbitration neutrals in our state. We listen and learn from each other by talking through common arbitration challenges and how they might be better resolved. Our discussion is frank and encourages participation by all. Please also consider becoming an official ADR Section member as lawyers from those practice areas dealing with arbitration join their full-time neutrals colleagues to discuss what works, what confounds, and how to improve skills in this growing field. See more here-- bit.ly/ADR_ArbForum_6

Deepwater Arbitrator Not Biased

The English Court of Appeal ruled that an arbitrator chairing an insurance case arising from the Deepwater Horizon oil rig explosion in the Gulf of Mexico ought to have disclosed involvement in overlapping cases, but said failure to do so did not make him biased. In a dispute following the Deepwater Horizon incident which caused extensive environmental damage along the Gulf Coast, numerous claims were made against BP, as well as Transocean and Halliburton, both of which had liability insurance from Chubb. After settling with claimants, both companies made claims under their insurance policies which Chubb rejected on the basis that the settlements were unreasonable. Halliburton commenced arbitration proceedings against Chubb and each party appointed an arbitrator. The parties could not agree on the identity of the third arbitrator who was then court-appointed to chair the tribunal. The chair disclosed that he was already in two unrelated insurance cases to which Chubb was party. Transocean later also commenced arbitration against Chubb. Chubb named the chair arbitrator in the Halliburton case as its party-appointed arbitrator. Prior to accepting this appointment, it was disclosed to Transocean that the same arbitrator was appointed chair in the Halliburton case and in the other Chubb arbitrations which had been disclosed to Halliburton. However, the arbitrator failed to disclose to Halliburton his proposed appointment in the Transocean dispute. Halliburton later tried to remove the arbitrator on the grounds of doubts as to impartiality, but a trial court found there was no appearance of bias against Halliburton which then appealed. While the appeals court accepted Halliburton’s concerns of unfairness where an arbitrator accepts appointments in overlapping cases with only one common party, the court found arbitrators, like judges, are to be assumed trustworthy and to understand that they should approach every case with an open mind. They found the mere fact of an overlap does not give rise to justifiable doubts of impartiality. While finding best practice calls for an arbitrator to disclose circumstances that would lead an observer to see a real possibility of bias, such that disclosure should have been made, they nevertheless rejected the appeal. See more here-- https://bit.ly/2I7QA3u and https://bit.ly/2I2ljir

Free Arbitration CLE 6/1/16 - Join us!

Arbitration has been a hot topic this year, whether in the form of coming changes to consumer and class arbitration or developments in cross-border and international agreements. Some practitioners prefer including these clauses in their contracts, while others seemingly avoid including dispute resolution before a neutral or panel of neutrals as an option to avoid court when disagreements arise. Next month, I will be joined by Gary Salzman, Esq. and Beppy Owen, Esq. at the Orange County Bar Association on June 1, 2016 for an Arbitration CLE hosted by its Business Law Committee. We plan to cover the nuts and bolts of the process, as well as hints in avoiding traps while drafting arbitration provisions at the outset. We will also discuss qualifications of the arbitrator and the perception that subject matter expertise is helpful to the dispute resolver selected. This complimentary CLE also addresses recent trends in this venerable form of alternative dispute resolution and will take place from 12:00 p.m. – 1:00 p.m. at the OCBA Center, 880 N. Orange Ave. in Orlando. The registration deadline is May 30, 2016. Please RSVP to Marie West at 407-422-4551, ext. 233. See more information here-- http://www.orangecountybar.org/products/seminars and http://www.attorneyatlawmagazine.com/orlando/arbitrator-lawrence-kolin-speak-ocba/

Join me 1/19 for Arbitration Backlash CLE webinar

This month, the U.S. Supreme Court issued its third decision in the last four years upholding private-party contracts to arbitrate rather than to litigate disputes. Arbitration, however, continues to be attacked by media and government despite being an effective ADR method to resolve disputes and control the rising cost of trying lawsuits. Federal law supports and governs the practice through the Federal Arbitration Act. To be enforceable, a clause must provide a meaningful opportunity for redress, and courts review contractual provisions for fundamental fairness. Because the litigation system has become so expensive, arbitration is often the preferred forum for disputes involving amounts in controversy for which litigation of claims is uneconomical. Next month, UWWM will feature this topic in its complimentary webinar entitled, Arbitration Backlash. Arbitrators Lawrence Kolin and Brandon Peters, along with our guest Phil Calandrino, will explore the backlash against arbitration and remind attendees of the origins and benefits of this dispute resolution process. This content is designed for trial lawyers who represent clients in arbitration and for attorneys who use arbitration clauses in contracts. Attending our complimentary Webinar will entitle you to 1 hour of General CLE credit, pending with The Florida Bar. After registering, you will receive a confirmation email containing information about joining us Tuesday, January 19, 2016 from 12:00 PM - 1:00 PM EST We look forward to your attendance! See registration information here-- https://attendee.gotowebinar.com/register/5506879070378935041

Armstrong Seeks To Vacate Arbitration Award

When cyclist Lance Armstrong finally confessed doping to Oprah Winfrey in 2013, the Dallas sports insurance company that paid him millions of dollars in victory bonuses sued for fraud, asking for its money back. After SCA accused Armstrong and filed suit which was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. The dispute with Armstrong actually began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005. SCA Promotions paid Armstrong $7.5 million in 2006. Evidence from that arbitration was used later against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was banned for life by the United States Anti-Doping Agency and stripped of his Tour titles in August 2012. Last February, SCA won a $10 million ruling against him after this case went back to the same arbitration panel that handled the 2005 dispute. The panel said Armstrong used perjury and other wrongful conduct to secure millions of dollars of benefits from SCA. One of the three neutral panelists dissented, noting that the parties entered into a final and binding settlement agreement the last time around. The dissenter apparently believes the majority's sanction is an unwarranted, unlawful reversal of a prior settlement agreement already made and effectuated. Armstrong's attorneys reportedly say the arbitration panel exceeded its authority with its recent ruling. According to news reports, Armstrong's attorneys claim the panel's issuance of sanctions violates well-established Texas public policy favoring settlements and arbitrations for efficient and final resolution of disputes. Court documents show Armstrong and Tailwind Sports, which owned the U.S. Postal Service team for which Armstrong raced, are seeking to vacate the award, insisting it “effectively eviscerated a fully negotiated and binding settlement agreement” reached between Armstrong and SCA Promotions in 2006. The arbitrators have said, “Perjury must never be profitable.” SCA Promotions is now asking a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and the former team owner so it may proceed to collect payment. Armstrong’s lawyers maintain the dispute settled voluntarily and finally years earlier. Interestingly, Armstrong previously offered to pay SCA despite the absence of any legal basis for the sanction, and SCA refused to accept. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See full stories here-- http://bit.ly/1F4qXrH and http://usat.ly/1Kqgxm2 and link to motion to vacate pleading here-- https://www.scribd.com/doc/264558280/Lance-Armstrong-Does-Not-Want-to-Pay-SCA-10-Million

Armstrong Arbitration

A three-arbitrator panel in Texas found 2-1 in favor of SCA Promotions, a Dallas sports insurer that paid cyclist Lance Armstrong millions of dollars in bonuses for winning seven Tour de France titles. SCA’s dispute with Armstrong began over a decade ago, after the former U.S. Postal Service team member won the 2004 Tour de France, the sixth of his seven consecutive victories. Following doping allegations, that case went to arbitration in 2005, and SCA Promotions was forced to pay $7.5 million in 2006. Evidence from the SCA arbitration dispute was used against him, including testimony from a former teammate and his wife, who said they heard Armstrong admit to using performance-enhancing drugs back in 1996. Armstrong was later banned for life by the United States Anti-Doping Agency and stripped of his seven Tour de France titles in August 2012. Armstrong did not admit to taking banned drugs until a January 2013 televised interview with Oprah Winfrey. SCA accused Armstrong of fraud and filed suit in early 2013, and after the case was sent to arbitration, Armstrong unsuccessfully tried for an appeal with the Texas Supreme Court to have the case blocked. In a filing yesterday, SCA Promotions asked a Texas state judge to confirm the arbitration award against Armstrong. It wants the court to enter a $10 million judgment against Armstrong and former team owner that may enable it to collect payment. Armstrong’s lawyer maintains that the dispute was fully and finally settled voluntarily years earlier. However, reportedly, Armstrong offered to pay SCA the entire $10 million, despite the absence of any legal basis for the sanction, and SCA refused the offer. Armstrong is also facing a $100 million fraud lawsuit from the federal government. See stories here-- http://on.wsj.com/17L3fUG and http://on.si.com/1zkTpzc

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Neutral Arbitrator To Decide Rice Supsension From NFL

In the NFL Players Association (NFLPA) appeal of Ray Rice's indefinite suspension, a neutral arbitrator, rather than someone appointed by National Football League (NFL) Commissioner Roger Goodell, will decide the outcome. Reportedly, the NFLPA executive director, DeMaurice Smith, told the union's executive board that "for the first time ever, the league in the Rice appeal has agreed to a neutral arbitrator" in a personal conduct disciplinary case. Each side submitted candidates for the arbitration and will confer regarding the final choice of the arbitrator. The NFL did say when the appeal was filed that Commissioner Goodell did not intend to personally hear the case. In an email obtained by ESPN, Smith wrote, "This occurs in the context of a difficult set of facts and circumstances [but] it is a positive movement on the overall question of neutral arbitration and a fair personal conduct discipline process." Smith also said the NFLPA will form a commission of diverse experts to assist the union and the league to address "education, prevention, counseling and the discipline process regarding domestic violence and sexual assault." Smith said also that the NFLPA leadership began reaching out to league sponsors to essentially demonstrate that "while we have occasional player issues, that the far majority of players are exactly the type of representatives they want and that we will address the process issues that have caused them concern." See full story here-- http://es.pn/1u8GYap

Arbitration Award for Queen of Versailles

Jacqueline Siegel, Orlando's Queen of Versailles, is free to pursue dreams of reality television after an arbitrator recently ruled against a filmmaker who claimed the Siegels signed away rights to their life story. The independent documentary film entitled "The Queen of Versailles" was a hit of the film festival circuit, including a Directing Award at the 2012 Sundance Film Festival. However, Siegel's victory comes with a bill for $750,000 in legal fees incurred by the filmmaker and her husband, in connection with a separate lawsuit. David Siegel's time-share company, Westgate Resorts, sued the couple for defamation and lost. An arbitrator in that case said he did not find any of the content in the movie to be false. The film was hailed as one of the best documentaries of the Great Recession and detailed the Siegels' quest to build the biggest home in America. Court documents claimed the couples' life-story rights were valued at $50 million. Reportedly, the victory might lead to a reality television show. David Siegel claims the couple is in negotiations with several networks. The filmmaker had argued the couple signed away rights to their life story as part of the filming release. The arbitrator apparently ruled differently, saying the life story releases were invalid and unenforceable. Attorneys for the filmmakers maintain their victory in the defamation suit was a triumph for First Amendment rights. See full story here-- http://bit.ly/PMdcbc

New AAA Rules in effect for Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators under these new rules should be better equipped to control modern discovery and the costs associated with the advent of electronic discovery. They may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. See AAA rule changes here-- http://go.adr.org/LP=307 and summary http://bit.ly/16z6r3i

NYTimes to mediate with Newspaper Guild

The New York Times and the Newspaper Guild of New York will mediate to hammer out a contract according to Arthur Sulzberger Jr., the paper's publisher, who broke the news to staff in an email (though there was apparently some dissatisfaction that the reporters were scooped on the story about the coming mediation). This attempt at ADR comes after employees staged a brief walkout and representatives for management walked out of a negotiating session. One correspondent praised the development, explaining to his colleagues that a mediator listens to both sides, leaning on each of them to give "bit by bit until a deal is reached." Officially, the company and the union have agreed to mediation "in order to maximize the potential of reaching a new collective bargaining agreement.” The chosen dispute resolver, primarily an arbitrator, Martin Scheinman, supposedly broke up a bar fight once by convincing one combatant his cue stick was too expensive to smash upon another. The Guild says it proposed Scheinman and tells members “A mediator cannot force a settlement, but instead uses persuasion to try to bring the parties to agreement. A mediator generally does not come up with his own proposals, but rather tries to push the parties closer to their respective positions. Neither side is bound by the mediator’s suggestions or proposals." According to the internal communication, "the union proposed Sheinman not because he’s pro-union but because he’s said to be super-smart. He’s a private mediator – he is paid by both sides to try to bring them to a deal. There are Federal mediators too, but the one assigned to this area apparently is not respected much." It seems there may be internal discord among NYT digital and print contract members, all of whom need to vote to approve a new deal. See stories http://huff.to/RjfNTW and http://bit.ly/W6veDD

Arbitrators throw out NFL suspensions

An NFL arbitration panel threw out the League’s suspensions of four players involved with the New Orleans Saints bounty or pay-to-injure case. A one year suspension of linebacker Jonathan Vilma was overturned, along with shorter suspensions to Scott Fujita, Anthony Hargrove and Will Smith, according to the National Football League Players Association (NFLPA). League Commissioner, Roger Goodell, suspended the players last May, but the latest decision apparently doesn’t affect suspensions handed down to Saints coaches. This was an appeal of an earlier grievance decision by Arbitrator, Stephen Burbank, that upheld the Commissioner's authority under the collective bargaining agreement to impose "conduct detrimental" discipline on players who provided or offered to provide financial incentives to injure opponents. The appeals panel of arbitrators consisted of retired San Francisco federal Judge Fern Smith, retired New York federal Judge Richard Howell, and Georgetown Professor James Oldham. The decision could impact consolidated federal lawsuits brought against the NFL by linebacker Vilma and the NFLPA on behalf of the other three players until Commissioner Goodell decides whether to reissue punishment within his power. U.S. District Judge Ginger Berrigan was spared from having to decide before Sunday on a TRO requested by the players. Interestingly, earlier in the week, Judge Berrigan lamented failure of settlement talks wrote she was concerned competing agendas among lawyers on all sides in the dispute were undermining the interests of the players-- asking whether it made more sense for Smith, Fujita and Hargrove to have separate lawyers, rather than the same lawyers representing the NFLPA. The players informed the judge in documents filed that they were comfortable with union representation. See stories-http://fxn.ws/PcFlEE and http://bit.ly/PSLCT8 and http://buswk.co/QslG3s and http://wapo.st/OXj4st and NFLPA statement-https://m.nflplayers.com

Arbitration under fire on NPR

According to recent news reports and The Diane Rehm Show today, an ever growing number of companies are including 'forced' or mandatory arbitration clauses in their contracts. What consumers and job seekers give up when they sign these contracts is their right to sue. Her guests included Professor Morrison, of GW Law School, who cited Kaiser's California health care plan arbitration that is working well. (But when asked by Ms. Rehm, he didn't know whether his own contract with the school includes and arbitration clause). Andrew Pincus, who represented AT&T in the Concepcion case before the Supreme Court, a former Assistant to the Solicitor General in the United States Department of Justice, who prevailed. The Court upheld the clause in that case on federal preemption grounds. Mr. Pincus felt the small claims represented by the plaintiff's class provided an incentive to utilize the process in bringing legitimate litigation. Richard Naimark, SVP of the American Arbitration Association, defended the process which he said has been growing the past dozen years. AAA's neutrals are independent third parties not beholden to anyone according to Mr. Naimark and have existed since the Federal Arbitration Act was passed in 1925. The process has evolved into consumer and employment rules which have differing fee structures, with businesses paying most fees. He argues arbitration is cheaper and easier than access the courts. AAA is taking a neutral position on the issue of mandatory clauses and primarily focuses on consensual arbitration. He maintains a common-sense explanation is all that is required on forms to get before an arbitrator. Christine Hines, a consumer and civil justice advocate at Public Citizen's Congress Watch wishes people to understand access to the courts. She seeks restoring rights of choice to the consumer, who unknowingly gave up their rights, when a dispute arises. She argues there is no transparency and that no public knowledge of corporate misconduct is bad for consumers. She is also worried about repeat business for private arbitrators favoring the corporation. However, arbitrators are required to disclose factors affecting neutrality according to AAA. Ms. Rehm said the process feels constricting and that transparency is lacking with regard to achieving justice which is not true in the courts. Mr. Naimark said courts are under budget stresses and are increasingly difficult for average people to navigate such that justice is best served through arbitration. Finally, though unlikely to pass, the guests discussed the introduction of the Arbitration Fairness Act last year as S. 987 and H.R. 1873 calling for arbitration to be agreed upon by both parties after the dispute arises and not just inserted in the fine print of often one-sided adhesion contracts. Listen here: http://thedianerehmshow.org/shows/2012-03-08/waiving-your-right-sue and also read an NY Times editorial on this subject here: http://www.nytimes.com/2012/03/07/opinion/stuck-in-arbitration.html

Arbitration in the crosshairs

I attended an arbitration seminar at my Inns of Court tonight that was put on in conjunction with the AAA. Arbitration is controversial in that no appellate rights really exist in the absence of fraud or mistake. Further, despite the reported cost savings over protracted civil litigation, administrative and panel neutral fees can be expensive.

Suffice it to say that arbitration is becoming unpopular at least in the consumer side of law, with unconscionable agreements and clauses being attacked and litigated.

As the recent oral argument in the case of AT&T Mobility LLC v. Concepcion has raised the question whether the federal act permitting arbitration forbids states from overriding contractual waivers of the right to bring class action lawsuits. AT&T’s practice of drafting contracts with the clause blocking class-action filings in favor of arbitration is not unique, with many such companies adopting that language.

Of course, large companies favor negotiations handled in a confidential setting. That is one of the benefits touted of arbitration, versus a public court file and trial.

The ultimate outcome in that U.S. Supreme Court matter will certainly have important nationwide ramifications for consumers and businesses alike.

Welcome to Orlando Mediator

This blog was created by Orlando Mediator Lawrence H. Kolin, Esquire to explore issues and trends in dispute resolution.

My alternative dispute resolution practice has continually evolved since becoming certified in 2001 in Circuit-Civil and County mediation by the Florida Supreme Court. I have handled complex cases in state and federal trial courts, as well as the Fifth District Court of Appeal, where I was a member of the pilot program for appellate mediation.

Since litigation costs have gone up and the economy is still sour, early settlements are on the rise. Pre-suit mediation is popular and can be effective if the parties have enough information to evaluate their positions in the potential litigation.

Another recent development has been the advent of electronic discovery and the struggle by courts and lawyers to get a handle on the necessity and expense of producing and exchanging data in proportion to the amount in controversy. Early mediation of these e-discovery issues can actually help narrow the scope and return the focus of the parties to the merits of the case.