“Agreements” to Arbitrate: How Stands First Options?

As recently as 1995, the Supreme Court observed, in First Options of Chicago v. Kaplan, that arbitration was a creature of contract: “[A] party who has not agreed to arbitrate will normally have a right to a court’s decision about the merits of its dispute.”

Yet what constitutes an agreement to arbitrate seems to be very much in play since First Options was decided.  In that case, owners of an investment company were held to have agreed to arbitrate disputes involving that company, but were held not to have agreed to arbitrate disputes in their personal capacities.  The analysis parsed the distinct legal capacities of informed and sophisticated parties, and determined that the same people consented to arbitrate in one capacity, but did not consent to arbitrate in another — and that they had done so intentionally, strategically and with a particular purpose in mind that the courts were bound to respect.

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Lurie and Lack on “Guided Choice”

The October 2014 issue of Dispute Resolution International (the journal of the Dispute Resolution Section of the IBA) features an excellent article by Chicago mediator/arbitrator/attorney Paul Lurie and Swiss/Israeli mediator/attorney Jeremy Lack on “Guided Choice Dispute Resolution Processes: Reducing the Time and Expense to Settlement.”  As the title suggests, the logic of the piece stems from the fact that nearly all business disputes are resolved, and that savings are therefore best realized by reducing the time between commencement to resolution.

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CLE Program on Why Deal Lawyers Should Get Involved in ADR


On Wednesday October 22, 12:50 – 2:15 pm, New York Law School’s ADR Program is offering a reprise of a very successful panel from last April’s ABA Business Law Section meeting in Los Angeles: “Calling All Deal Lawyers: Why Transactional Attorneys Should Get Involved in Dispute Resolution.”

The program features James Freund, Mediator and former partner, Skadden, Arps, Slate, Meagher & Flom LLP; Richard Hall, partner, Cravath, Swaine & Moore LLP; Joan Stearns Johnsen, Mediator and Arbitrator; and Richard Lutringer, Mediator and former partner, Schiff Hardin LLP.  The program description notes:

Transactional attorneys are highly trained, highly skilled, and highly experienced in negotiating complicated and sophisticated agreements. Yet too often, when something involving those agreements goes amiss, deal lawyers are not called upon to help resolve the problem. Why is it that, when litigation is threatened or even commenced, the lawyers who know the deal, know the documents, and know the players are not involved in solving the problem? Is it time to give clients more value by getting deal lawyers involved in the resolution of disputes arising from their deals? A light lunch will be served prior to the program.

CLE credits are offered, lunch is served from 12:30 pm, the price is right at $35, and reservations can be made at www.nyls.edu/CallingAllDealLawyers.

Italy and Mediation: Redux, Redux, Redux….

Mediation in Italy has for many years seemed like teenage sex — more people talk about it than actually do it, and those who do it, do it poorly.

And it has also been a target for humor, compassion, anti-lawyer spleen-venting, and constitutional mish-mash.  It seems that every few months there is another statute, constitutional challenge, administrative edict or judicial pronouncement.

Our good (and good-humored) friend Giuseppe De Palo has directed our attention to a new article on the topic, summarizing the status of things (at least for now — don’t blink).   It opens with a quotation from Machiavelli and closes with a comment citing Shakespeare.  So you know it’s erudite, at least.  And coming from Sr. De Palo, it can hardly be more authoritative.

Buona lettura!

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