At one time, many courts were hostile to arbitration. Arbitrators didn’t need to be lawyers, and they often didn’t approach things the way a court would. To those used to the way courts decide disputes, arbitrators’ way of deciding disputes could seem, well, arbitrary. And so, many courts were hostile to arbitration. Yet, many businesses felt they needed a quicker and less expensive way to resolve disputes and move on. Permitting arbitration and limiting review So, Congress passed …
Articles by Fellows
Commercial Arbitrations: Private, But Not Always Secret
An advantage of commercial arbitration is that it is private. The dispute is resolved in a private proceeding. Unlike court, the public is not allowed in. Arbitrators must keep secrets Under the rules of most arbitral organizations and under ethics rules for arbitrators, the arbitrator must keep things confidential. E.g., AAA Comm’l Rule 25 (“The arbitrator and the AAA shall maintain the privacy of the hearings unless the law provides to the contrary.”); Code of Ethics for …
“The Value of Peach Orchards” The Perils of Arbitrator Subject-Matter Expertise
The ability to select and appear before arbitrators with factual subject-matter expertise is often proclaimed as a great advantage of arbitration over litigation. However, expert/arbitrators can also present perils to natural justice and to arbitral award enforcement. (Published in ZDAR, July 2018) *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
Debunking Misperceptions: The Upsides of Commercial Arbitration
(©2021 Published in Litigation, Vol 47, No. 4, Summer 2021, by the American Bar Association. Reproduced with permission. All rights reserved.) We all recall The New York Times’ three-day, front-page series in 2015 entitled “Beware the Fine Print,” and the provocative tagline of its first segment, “Arbitration Everywhere, Stacking the Deck of Justice.” The series raised legitimate questions concerning the fairness of “forced” arbitration agreements prohibiting consumers and employees from …
Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions and Common Ground on Med-Arb, Arb-Med and Settlement-Oriented Activities by Arbitrators
(This article has been posted on SSRN and accepted for publication in a forthcoming edition of the Harvard Negotiation Law Review). View this article online at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689389 *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
Arbitration Cases (I Wish I Had Mediated), Mediation Cases (I Wish I Had Arbitrated) and Applying Arbitral Skills in Mediation
(This article first appeared in the April 2021 issue of the Pennsylvania Bar Association ADR Newsletter). Justice may be blind, but it is not always just. An order in a child custody battle may not serve the interests of the children and likely does not promote harmony between warring parents who must negotiate lifelong relationships with each other because of those children. An order in a will contest will settle the distribution of the estate, but will likely harm the …
Wait, What Happened? Recent Developments Affecting Commercial Arbitration You May Have Missed
We all try to stay on top of developments in the commercial arbitration field. Most can confidently recite the holdings from recent key Supreme Court decisions and a sprinkling of other notable or notorious rulings. But for most of us our busy schedules stand in the way of keeping up with the rapid pace of developments in the ever-evolving world of commercial arbitration. The tidal wave of case law developments has multiple drivers. Certainly, the Supreme Court’s enduing embrace of the …
Commercial Arbitration Is Alive and Well
One hundred years after adoption of what is now Article 75 of the New York CPLR and, soon thereafter, passage of the Federal Arbitration Act, the benefits of arbitrating commercial disputes are generally known and widely accepted in the business community. Arbitration disputes on average are concluded far more quickly and efficiently than court litigation. A study reported by the American Arbitration Association compared the average duration of arbitrations conducted under AAA auspices with …
Arbitrating Disputes Involving Blockchains, Smart Contracts, and Smart Legal Contracts
Blockchain-based distributed (shared) ledgers (“Blockchain Ledgers”) provide an immutable, secure, and tamper-evident alternative to conventional transactional modalities,1 one which also yields enhanced accountability, traceability, and transparency. (Published in the AAA Dispute Resolution Journal, October 2020, Vol. 74, No. 4.) *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
Private Arbitration for Business Disputes in the Time of COVID
Courts are overwhelmed. Courts are funded by taxpayer dollars and are, in the time a pandemic, not a priority for additional funding. Since COVID, many courts have shut down except for maintaining essential functions of handling criminal matters, domestic violence, custody rulings and those explosive public matters that require immediate attention. The courts, for compelling reasons, back-burner commercial disputes. Commercial disputes are of the parties own making, and, almost by …