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What You Don’t Know Can Hurt You: The Hidden Impacts of Unconscious Bias
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2022 Virtual Arbitration Report to CCA
In connection with a presentation by a panel of CCA Fellows at the Spring Meeting of the ABA Dispute Resolution Section, the College surveyed its membership seeking the individual and collective experiences and opinions of the Fellows regarding arbitrations conducted in whole or in part through remote video technology (‘virtual arbitrations’). This is a preliminary summary of the results of that survey. (April 2022) *The views expressed are those of the author and do not necessarily …
The Many Good Things About Commercial Arbitration
Recently, the Washington Post published a story that referenced the concept of “negative memories.” The story noted that humans tend to notice the negative more than the positive and are more likely to remember negative experiences versus the positive. This story resonated with me, primarily because I have recently received reports or examples of public criticism of the arbitration process. For example, the Miami Dolphins NFL football team demanded claims by former coach Brian …
CCA Fellows Know About Mockingbirds and Other important Things
Fellows of the College of Commercial Arbitrators are knowledgeable and highly skilled, and that arbitration parties and their advocates routinely entrust College Fellows with their most important disputes. A recent public report of an arbitration award issued by College Fellow Richard H. Silberberg provides a case in point. We are all familiar with the famous novel, To Kill a Mockingbird, written by Harper Lee, which was developed into an Academy Award-winning motion picture starring …
Improving the Arbitration Process Using a CCA Process Facilitator
Many members of the College of Commercial Arbitrators are successful mediators as well as arbitrators. As mediators they can function concurrently as Process Facilitators (“PFs”) during an arbitration to help the parties prepare for an efficient arbitration. As PFs, they are not participating in a Med/Arb process where the same person is both a mediator and an arbitrator. As separately hired mediators, the PFs can talk with parties confidentially, and help the parties use efficient collaborative …
The Floodgates Have Opened: Mass Arbitrations
A series of U.S. Supreme Court decisions have all but eliminated class arbitrations for consumers, employees, franchisees, and others with common claims against a single company. The latest, decisive blow came in Lamps Plus, Inc. v. Varela, 587 U.S. __, 203 L. Ed. 2d 636 (2019), with the Court holding that arbitration on a classwide basis could not be compelled based on an arbitration agreement’s ambiguous language. Most arbitration agreements include a waiver of class arbitrations; …
Aardvarks Care About the Cost of Business Dispute Resolution!
The CCA Arbitration Aardvark* has noticed quite a bit of discussion on the cost of business dispute resolution and whether arbitration is speedier and less costly than litigation. It certainly can be and often is. It has been reported that business arbitrations take on average 7.3 months from start to resolution while the U.S. District Court cases take an average of 23.4 months – and that’s even before appeals. Generally, the longer a case takes the more expensive it becomes. The parties, in …
Preparation of Partial, Final, Interim and Corrected Awards and the Doctrine of Functus Officio
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Pathological Clause of 2021: Winner
Inspired by Gary Born’s lecture on Pathological Arbitration Clauses, as well as the discussion in his International Commercial Arbitration (3rd ed. 2021), I recently challenged CCA Fellows to nominate troublesome clauses that came to their attention this past year. Before announcing the winner, though, a word or two on the criteria for the challenge. Introduction As described in Frédéric Eisemann, La Clause D’arbitrage Pathologique [in COMMERCIAL ARBITRATION: ESSAYS …
