UNCITRAL & International Settlements

The United Nations Commission on International Trade Law (UNCITRAL) was established by United Nations General Assembly Resolution 2205 in 1966 to promote the progressive harmonization and unification of international trade law. Lack of framework for the enforcement of settlement agreements is why international parties are often reluctant to resort to mediation, notwithstanding its effectiveness as a method of ADR. In order to promote mediation and solidify the enforceability of settlement agreements, efforts by UNCITRAL are underway to find a solution. Last summer, during a session of UNCITRAL that took place in New York, a proposal to undertake work on the preparation of a convention on the enforceability of international commercial settlement agreements reached through mediation/conciliation was put forward to UNCITRAL by the United States. Accordingly, Working Group II (WGII)-- one of six working groups established by UNCITRAL, specifically relating to arbitration and conciliation-- was assigned to perform the substantive preparatory work. This group was requested to consider the proposal and report back to UNCITRAL on the feasibility and possible form of work in that area. During a recent session of UNCITRAL that took place in Vienna, WGII reported to UNCITRAL a summary of its findings, its concerns and recommendations. UNCITRAL approved giving WGII a mandate to work on the topic of enforcement of settlement agreements resulting from international commercial conciliation. Reportedly, the mandate given by UNCITRAL to the WGII is broad enough to include different possible forms of work, namely: (i) a guidance text, (ii) a model legislative provisions, and perhaps most significantly, (iii) a convention. It will be interesting to see what develops as a result of this important work. See more here-- http://bit.ly/1Xbd9no and http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html

A look back: President's Mediation Commission

While recently researching Justice Frankfurter of the U.S. Supreme Court, I discovered that before he became an associate justice, he was appointed almost a century ago to a body known as the President's Mediation Commission. This represented a partial federal response to two vital aspects of wartime labor policy: 1) the spreading wave of strikes which interfered with the production of goods deemed vital to the war effort, and 2) the growth of labor radicalism associated with the Industrial Workers of the World (IWW). Samuel Gompers, the president of the American Federation of Labor (AFL and later AFL-CIO), feared both the growth of the IWW and the ensuing vigilantism, which threatened AFL unions. Apparently, Gompers desired a federal policy that would simultaneously curb the IWW and protect "legitimate" trade unions. Gompers urged Washington to form a special presidential commission to investigate labor-capital relations. In August 1917, the secretary of labor convinced President Woodrow Wilson of this policy and a five-person commission was created. The secretary desired a commission that would effectively mediate the substantive issues causing labor discontent and would also eliminate the IWW. More influential than any of the five suggested commission members, was Felix Frankfurter. Officially appointed by President Wilson, the President's Mediation Commission operated on the basis of guidelines set by Frankfurter. Those guidelines recommended the promotion of AFL-style trade unionism, the elimination of subversvie IWW locals, and the encouragement of industrial democracy. The Commission began its formal investigations and hearings later that year. Its members later traveled to various industries and investigated their disputes, studying labor discontentment. The following year, the Commission presented its findings and recommendations to the President, which largely followed the original Frankfurter guidelines and which were subsequently published as a special bulletin by the Department of Labor. See more at Guide to the Papers of the President's Mediation Commission on microfilm collection number: 5751 mf-- http://rmc.library.cornell.edu and Report of President's Mediation Commission-- http://bit.ly/1Ubu2Kw

The Evolution of the Joint Session

Recently, Kim Taylor, COO of JAMS, questioned the survival of the long-held practice of commencing mediation conferences with a joint session of all parties and their counsel. Usually, that provides an opportunity for each viewpoint of the case to be expressed to the other side and to outline the settlement process with participants, before breaking into individual caucuses. Over eighty percent of mediators surveyed earlier this year used such sessions twenty years ago. Lately, a resistance to joint sessions is reported to have arisen. That survey of neutrals revealed a decline in the use of the joint sessions. Regionally, some seventy percent of neutrals based in the east said they still regularly use joint sessions. I find them to be helpful and estimate that I start that way over ninety percent of the time. However, the report from Southern California is that joint sessions are held merely a quarter of the time. Perhaps the process has become confrontational or maybe both sides already understand the positions and everyone just wants to get down to the business of negotiating, supposedly saving costs. Of course, there are certain cases where a joint session is not productive and could actually prove detrimental to the process. Ms. Taylor suggests that because of self-determination, most mediators will not insist on a joint session if the parties do not want one. However, to skip an initial joint session could impact the process that follows, limiting options for settlement or finding common ground and the path to a deal. I try to use it regularly, as our rules require disclosures and I find it assists in laying some foundation for the process and expectations. Caucuses can remain confidential and the parties retain control over information to be shared. Using the open ended question in joint session to get positive responses from the parties at the outset on areas where there already may be overlap in agreement on facts or damages is essential to reaching a successful outcome. See more here-- http://bit.ly/1KajjyN

Fla.11th Jud. Cir. Responds to Mediator Rules Proposals

Florida's Eleventh Judicial Circuit in Miami-Dade County formally commented on proposed amendments to the Florida Rules for Certified and Court-Appointed Mediators. The proposed changes completely revise Mediator Rules relating to disciplinary matters. The stated intent of the proposal is to address inconsistencies, gaps and omissions found in the present version. However, the Miami judicial circuit claims inconsistencies, gaps and omissions require further consideration by the committee before being approved by The Supreme Court of Florida. The Eleventh Judicial Circuit Mediation/Arbitration Unit stated they recognized the importance of clear and concise guidelines and rules to maintain the ethical standards of the profession and to maintain the public confidence in the mediation process. Their comment emphasizes that the rules, as proposed in the amendments, blur the fundamental principles of equity, due process and neutrality. They find certain amendments are vague, arbitrary, and impose an inequitable burden on the mediator who is the subject of disciplinary action. After a thorough review in which they enumerate the new language and procedural changes, they suggest that instead of promoting a more comprehensive uniformity and consistency, the broad nature of the changes perpetuates further inconsistency and general confusion in the proposed disciplinary procedures. The Florida Bar ADR Section is also considering filing formal comments to these rules proposals and has sought an extension for such period to and including August 24, 2015. Accordingly, the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy is allowed to and including September 14, 2015, in which to file its response. See more here-- Case Number: SC15-875 - IN RE: AMENDMENTS TO THE FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS http://jweb.flcourts.org/pls/docket/ds_docket_search

Seminole Mediation

The Seminole Tribe of Florida formally requested mediation in its ongoing dispute with the state over whether it can still offer card games, including Blackjack, in the future. Five years ago, the parties entered into a 20-year compact under the Indian Gaming Regulatory Act. The agreement gave the tribe exclusive rights to operate banked card games at most its facilities for five years. Lawmakers failed to pass a renewal of the compact or a new deal during this spring’s legislative session. Now, without the agreement renewed, the Seminoles find themselves within a 90-day period at which time they must discontinue such games. For five years of exclusivity, the Seminoles pledged to pay Florida a minimum of $1 billion during that period, an amount the tribe has actually exceeded. The tribe and its lawyers contend violation of exclusivity by allowing other gambling operators to operate banked card games. Last week, a mediation request stated that “The Tribe seeks to confirm: (1) its present right to continue offering banked card games for the remaining term of the Compact, which expires in 2030; (2) its right to stop making exclusivity payments to the State under the Compact and to instead make those payments into an escrow account; and (3) its right to expand the locations at which it is permitted to offer banked card games.” Last month, the tribe's chief sent the governor “notice of commencement of compact dispute resolution procedures” which outlined what the tribe considers violations of the agreement that expired without agreement. That letter included a claim the tribe has made for years regarding slot machines that look like Blackjack and Roulette and are authorized by state gambling regulators at non-tribal pari-mutuels. Reportedly, the tribe seeks to add other games, such as Craps and Roulette, as out-of-state casinos look for a foothold in Florida. The tribe is asking that a mediation conference take place within the next month. See stories here-- http://bit.ly/1IAVhrm and http://cbsloc.al/1KwJKNC

NFL - Brady Settlement Not Looking Good

As the New England Patriots begin training camp, there is no certainty about whether Tom Brady will be available for game one of their NFL season. While there have been reports regarding a possible settlement for Brady’s appeal of his four-game suspension, with leaks that he is seeking either a complete exoneration or only a fine, others say he may be willing to accept a reduced suspension. It is unlikely that Brady would agree to miss games without taking the case to court to avoid admitting any guilt. They say a fine could be interpreted as putting the so-called Deflategate distraction behind his team. But now, the NFL could reject Tom Brady’s appeal and uphold the four‐game suspension. The NFL claims the quarterback's actions were detrimental to the integrity of the sport. ESPN today reported Commissioner Roger Goodell will not reduce or overturn Brady’s suspension and that Brady may have actually destroyed his own personal cell phone rather than just refusing to turn it over. The NFL was annoyed Brady would not give up relevant text messages and emails that might help clarify his level of involvement in Patriots equipment managers allegedly letting air out of game balls. Now it appears that electronic evidence may have been spoliated. Still, NFL Media's National Insider reports that the NFL and NFL Players Association exchanged offers for a potential settlement on Brady's suspension, according to sources informed of the negotiations. See stories here-- http://bit.ly/1Jq4HuT and http://bit.ly/1fEbJ39 and http://www.nfl.com/news/story/0ap3000000504228/article/nfl-nflpa-exchange-offers-on-brady-settlement

Masters Conference for Legal Professionals

Please join me tomorrow as I speak about streamlining electronic discovery at the Masters Conference for Legal Professionals on Tuesday, July 21, in New York City. Having chaired the recent effort to amend Florida Civil Procedure Rules to include e-discovery and previously taught for the state’s Advanced Judicial College, I'll join other industry experts in taking attendees through the life cycle of a complex case. We'll be focusing on fixing problem areas for a more cost-effective approach in a panel discussion titled “How to Streamline E-Discovery,” which runs from 11 am to noon. All eight of the conference’s sessions will take place at New York’s famed Harvard Club. The conference will concentrate on e-discovery, data protection, records management and related topics. My emphasis will be on avoiding discovery disputes in the courts through the use of E-Neutrals, Mediated Case Management and Special Masters by culling the universe of information available to parties, in order to let them focus back on the merits of the claims and defenses. E-Neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus a confidential conference solely on managing ESI, or the neutral may broaden the discussion, perhaps dissuading parties and counsel from merely using e-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For more information about our panel at the Masters Conference, please visit-- http://themastersconference.com/agenda/how-streamline-ediscovery and for the full agenda tomorrow, see-- http://themastersconference.com/events/new-york-city