Business Conflict Blog

At the ABA Annual Meeting, in the course of a panel on arbitration developments, veteran arbitrator Deborah Rothman tee-ed up a fascinating challenge.  Clients regularly engage consultants in litigation.  Why not in arbitration?

Indeed, isn’t the value of a consultant in arbitration much more evident?  Arbitration has special challenges, different legal standards, truncated discovery and a distinct enabling procedural statute.  And the unavailability of appeal puts far more emphasis on getting a right outcome.  Rothman suggests that a very strong argument can be made for the arbitration consultant. Read more »

Tags: Arbitration

Last Spring, the ABA Sections of Business Law and of Dispute Resolution featured several programs anticipating the release of the Protocols for Expeditious, Cost-Effective Commercial Arbitration promulgated by the College of Commercial Arbitrators.  The Protocols are the main product of the multi-party Summit that was convened by the CCA in October 2009.

The Protocols have now been released in final form and are available here.  I encourage attorneys, arbitrators and users of arbitration to print out a copy and study it carefully.

Tags: Arbitration

Prima Paint teaches that the arbitration agreement nestled in a commercial contract has a legal validity of its own, and that once a court determines that the “nestled” agreement to arbitrate is enforceable, then the arbitrator and not the court shall determine the enforceability of the rest of the contract.

The interesting thing about the arbitration agreement in Rent-a-Car, West v. Jackson is that there wasn’t anything for the arbitration agreement to nestle into.  The document evidenced only an agreement to arbitrate.  Other terms of any commercial agreement between Jackson and his employer were set forth elsewhere.  This was just a “Mutual Agreement to Arbitrate Claims.” 

So when Jackson was prompted to sue his employer for racial discrimination, the federal district court didn’t have an arbitration agreement to sever from the rest of the contract.  It had only the agreement to arbitrate itself, in all its lonely glory.

Which Jackson said was unconscionable because it was thrust upon him and unfairly limited his ability to vindicate his statutory rights.

And which provided that questions of unconscionability were to be decided by (guess who?) the arbitrator, not the court.  Take that, Prima Paint.

Read more »

Tags: Arbitration, Employment

Some time ago I brought to readers’ attention a case holding that an attorney who was alleged to have committed malpractice during a mediation could not be sued because confidentiality barred the introduction of evidence of the attorney’s behavior during the mediation. 

Now we have the arbitration side of the coin:  A party that engaged an arbitrator to render a final and binding award, and that participated in a series of evidentiary hearings, has no recourse when, at the end of the last hearing, the arbitrator declines to issue an award on the ground that he has become “too compassionate towards both sides.”  The full text of the January, 2010 decision of the California Court of Appeals may be found here. Read more »

Tags: ADR Institutions, Arbitration