Mediation Magazine Article

So pleased to be published in this month's Mediation Magazine, a new offering from the American Arbitration Association (AAA). Mediation Magazine features a diverse range of articles and other media, including commentary on emerging trends in domestic and international mediation, case studies and lessons learned, interviews with thought leaders, innovations in mediation process design, research summaries, ethical considerations, and cross-cultural perspectives. It also offers practice-oriented content such as negotiation techniques, mediator toolkits, and dispute system design strategies. According to AAA, articles are written by leading voices in the field—practicing mediators, legal professionals, academics, and dispute resolution experts—and are complemented by interactive features such as videos to enrich engagement and accessibility. Published continuously throughout the year, Mediation Magazine aims to inform, inspire, and connect professionals committed to advancing effective, fair, and forward-looking mediation practices globally. I serve on the national panels for AAA commerical mediation and arbitraion. Though the now hundred-year-old non-profit organization has arbitration in the name, it maintains a robust mediation program. There is a growing prevalence among those drafting business contracts of including clauses requiring mediation as a precondition to initiating a lawsuit or arbitration. Disputes arising from contract obligations can be complex, technical, and even structural. Issues regarding the formation, interpretation, or enforcement of obligations invite evidentiary disputes over the circumstances surrounding the making and performance of the subject agreement. Most disputes result from the breakdown of a relationship, so I thought I'd expound on what happens in business cases and give some practical perspectives. Commercial mediators are able to ascertain the root cause of that breakdown and often help parties self-determine the outcome and avoid going to court or arbitration to get a resolution. See more here-- https://mediationmagazine.adr.org/practical-perspectives-on-commercial-mediation/

Common Ground - Commercial Mediation

This month, I'm pleased to be featured in The Common Ground publication by the Alternative Dispute Resolution Section of the Florida Bar fall/winter issue. I have written about the the dynamics of mediating commercial litigation cases and the unique and different challenges of this type of mediation. Getting the proper parties to the table and adequate preparation of counsel and client are keys to success. I also explain the nuances of commercial mediation by discussing relationships, strategy, multi-party cases, impasse, mediated settlement agreements, and more. Most disputes result from the breakdown of a relationship. Commercial mediators are often able to ascertain the root of that breakdown. Just as in other types of cases, there are underlying relationship issues and while it is conventional wisdom to try and separate the personal from the business issues, it is often the interpersonal that needs to be overcome to get to a satisfactory resolution. For commercial litigation, the atmosphere at mediation should be more like negotiating a complex business deal than making closing arguments. Competitors may even end up becoming partners at the end. See the article along with the entire issue here-- bit.ly/ADR_FW23_CG

Rapid Arbitration in Delaware

Delaware lawmakers are moving quickly to approve legislation streamlining the closed-door resolution of corporate disputes, after an earlier state-sponsored secret arbitration program was struck down as unconstitutional by a federal court. Delaware lawmakers previously passed legislation allowing state judges to preside over private corporate arbitration proceedings. The Delaware Coalition for Open Government challenged the program on constitutional grounds, arguing that citizens have a First Amendment right to access court hearings. The new legislation cleared the Senate Judiciary Committee without debate and already passed the House. Delaware Senators were expected to take up the measure and send it to the governor for signature this week. The bill's supporters say the revised rapid arbitration process doesn't run afoul of the Delaware or U.S. Constitution because, unlike the earlier secret arbitration scheme, the new program would not be run by sitting state judges. Delaware's Chief Justice advocated for a new arbitration program, and the legislation was drafted by a committee of the Delaware State Bar Association. A longtime corporate darling, Delaware is legal home to more than 1 million corporate entities, and more than two-thirds of Fortune 500. Corporations choose Delaware for access to friendly business laws and the Delaware Chancery Court, which is widely recognized for its judicial expertise in matters of corporate law. The new legislation requires resolution of arbitration disputes in 180 days or less, and gives the parties flexibility in choosing expert arbitrators. Other provisions also allow for the speedy resolution of disputes, which state officials claim offer Delaware another advantage as a legal home for corporate entities. See stories here-- http://delonline.us/1FIOcZP and http://bit.ly/1CdZst6

State's Confirdential Arbitration Program Violates First Amendment

The United States Court of Appeals for the Third Circuit ended Delaware’s confidential arbitration arbitration program, upholding a trial court decision that it violated the First Amendment. The program, established in 2009, was limited to business disputes of $1 million or more involving Delaware companies. Delaware is well known as a friendly state of incorporation for public companies and its Chancery Court specializes in business disputes. The state Legislature wanted cost effective means of resolving these disputes in light of growing private confidential arbitration with streamlined proceedings, like AAA and JAMS. Interestingly, the disputes were arbitrated by Delaware’s own judges, knowledgeable in adjudicating corporate law matters. Deliberations and resolution were confidential. Delaware charged $6,000 a day with a $12,000 filing fee, generating revenue for the state. Those outside of Delaware contended the rules moved important business disputes into private, perhaps to the detriment of shareholders and other stakeholders in the corporation. However, reportedly, this experiment also had strong proponents. They argued that judges regularly participate in mediation. Moreover, parties could agree to arbitrate their disputes without these judges. Delaware's need to compete, they argued, made arbitration a natural extension of its corporate law expertise. The Delaware Coalition for Open Government sued in federal court, claiming that the arbitration statute was unconstitutional. A lower court struck down the statute in 2012 holding that these arbitration cases were essentially confidential civil trials since the judges, place and proceedings were the same. The appellate court applied an experience and logic test, finding that these proceedings had traditionally been open to the public, and should remain open, even if called arbitration. The lone dissenter in a 2-1 decision stated that the Court of Chancery "may not be able to compete with the new arbitration systems being set up in other states and countries.” Apparently, less than a dozen cases were actually decided under the program. See stories here-- http://nyti.ms/I8sfs9 and http://on.wsj.com/163Rl3r