Business Conflict Blog

Two recent court decisions have bubbled through the cyber-community of ListServes and blogs.  Both address attorney disqualification — one in the context of a mediation and the other in the context of an arbitration.  The latter is featured here and the former will be described in a subsequent posting.

In Northwestern National Insurance Company v. Insco, Ltd, 11 Civ. 1124 (SAS) (S.D.N.Y. October 3, 2011), the court granted a motion  to disqualify the law firm of Freeborn & Peters LLP from continuing to represent its client Insco in an ongoing arbitration.   In deciding the motion the court (a) found that it, and not the arbitration Panel, was the proper forum for such relief, and (b) determined that Freeman’s solicitation, receipt, study and use of approximately 130 e-mails between the Panel members, some containing deliberations of the Panel, was an egregious breach of its ethical duties, meriting disqualification. Read more »

Tags: Arbitration, Courts

If nothing is ever as simple as it looks, then the seemingly simple rules of mediation confidentiality are particularly complex.  A group of colleagues was discussing the following hypothetical and could reach no clear conclusion:

A mediation session concludes with defendant’s counsel agreeing to revert to his (governmental) client to determine if an offer could be made along certain suggested lines.  A week later, counsel phones the mediator and directs that the offer can, in fact, be conveyed.  But the mediator can’t get the plaintiff’s counsel to call her back.  After many attempts, the mediator faxes a letter to plaintiff’s counsel, generally outlining the offer.  But she hears nothing.

Some months later, the mediator learns from the plaintiff that his claim was dismissed at summary judgment and, by the way, why did the defendants never get back about that final proposal?  The mediator says that they did make the proposal.  The plaintiff becomes upset and says that his (former) lawyers apparently never conveyed it to him.  Plaintiff asks what the terms of the offer were.

Read more »

Tags: Mediation

Thanks to the indefatigable Paul Lurie for posting, on his arbitration/mediation Listserve, the news of the recent release of the Annotated Code of Arbitrator Ethics.

The Revised Code of Ethics for Arbitrators in Commercial Disputes was released in 2004 by the American Bar Association and the American Arbitration Association.  This newly released version of the Code provides citations to judicial decisions and other writings that cite the 2004 Code (or its 1977 predecessor) from 1981 through July 2010.  Read more »

Tags: ADR Institutions, Arbitration

Frederic Luskin, Director of the Stanford Forgiveness Projects, reminded a packed house at the ABA Dispute Resolution meeting in San Francisco that a 2-yr old who is told “no” screams and yells when she doesn’t get what she wants, but then eventually stops and moves on to the next thing.  By contrast, a 40-year old who doesn’t get what he wants can persist in expressing his anger and indignation for many, many years; in some cases, he will never stop.  In this lies the attraction, for some, of the American civil judicial system.

Dispute resolution professionals often encounter people whose wound has morphed into an attribute of their very life.  Who they are is fundamentally tied with the claim.  They are no longer wife or butcher or brother or son; they are The One Who Was Wrongly Dealt With.  Dr. Luskin asked us whether we might consider not just helping that person to ”resolve” the dispute, but facilitating the removal of the conflict as a central mechanism of the relationship.  Might we help to guide wounded people past their wound? Read more »

Tags: ADR, Culture