The most recent survey concerning the use of an alternative dispute resolution clause by Fortune 1000 companies found that 98% used mediation, 83 % used arbitration, and 51% used mediation-arbitration within the last three years.
More than half of respondents said their motivation for doing so was a contractual requirement. Therefore, one would expect to find that dispute resolution clauses are a common feature of business contracts and that such clauses would be discussed in the academic literature for the guidance of ADR users and contract drafters alike.
Read moreThe lockdown has represented something of mixed blessing to proponents of mediation.
The lockdown has represented something of mixed blessing to proponents of mediation. On the one hand, stasis in the court system has presented an opportunity for all remote forms of ADR. On the other hand, the prospect of getting to grips with the technology was a pretty daunting one for those of us who struggled even to turn on a microphone at the beginning of last year! Ten months down the line, as we find ourselves back in lockdown, this seems a good point at which to reflect on the experience of conducting remote family mediations.
Read moreOn January 13, 2021, the U.S. District Court for the District of Columbia denied a motion to compel arbitration filed by First Premier Corp. (“First Premier”) in a Fair Credit Reporting Act case, on the grounds that First Premier did not sufficiently establish that the card agreement containing the arbitration clause was mailed to the cardholder. Proctor v. First Premier Corp., 2021 U.S. Dist. LEXIS 6502 (D.D.C. Jan. 13, 2021).
Read moreIs there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
Read moreThe Tennessee Department of Commerce & Insurance (TDCI) announces today that over $22.8 million was located and returned to Tennesseans in combined life insurance benefits/annuities and monies returned through the Department’s mediation efforts in 2020. TDCI’s figures show:
Read moreThe European Court of Justice (ECJ) has found in a judgment of May 2020 that the right of a legal assistance insured person to freely choose his or her lawyer applies not only to proceedings before a court or an administrative body, but also to stages in a dispute that may lead to such proceedings before a court. In this specific case, the ECJ ruled that this right applies to Belgian forms of mediation. With this ruling, the ECJ continues the trend in which it expands the limits of the right to free choice of one’s lawyer. I also discuss this judgment in my recent publication in the Dutch legal journal Jurisprudentie Burgerlijk Procesrecht (JBPr 2020/73).
Read moreNew Delhi: UK's Cairn Energy Plc has won an arbitration against the Indian governmentlevying Rs 10,247 crore in retrospective taxes, the company said on Wednesday.
Read moreFor many employers, an important reason for rolling out arbitration is a desire to avoid class and collective actions. In this article, we consider whether arbitration agreements live up to their billing in this regard. As explained below, while they aren’t fool-proof, for many employers and many employment claims, arbitration agreements do in fact significantly reduce the risk of class or collective actions.
First, we present the general rule, which is good news for employers. Then we explain some of the exceptions, risks, and pitfalls that can land an employer in a class or collective action.
Read moreMediation offers a supportive, flexible and cost-effective way for people to address matters relating to their family on separation.
Those issues can include:
the ongoing parenting arrangements for any children
child maintenance payments
the division of finances (for example any property, savings, pensions or debts that the parties’ have)
the practical arrangements for separating including interim finances
communication now and in the future.
Read moreICC has launched a new report on the accuracy of fact witness memory in international arbitration. The report, which is the first of its kind conducted by an arbitral institution, analyses the psychological science of human memory, and offers arbitrators and counsel guidance to enhance the probative value of fact witness evidence
Read moreFollowing months of congressional negotiations, on December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021, a $2.3 trillion piece of legislation that includes $900 billion in federal funding and relief for COVID-19.[1] The legislation also includes the No Surprises Act (“Act”), effective January 1, 2022, which significantly bolsters consumer protections for patients by addressing the circumstance of patients receiving “surprise bills” for health care services.[2] While we expect the Biden administration to issue regulations implementing the Act within the next year, stakeholders should be aware of the Act’s many new obligations on health plans,[3] health care facilities, and health care providers.
Read moreThe coronavirus has demonstrated the shocking fragility of the justice system in a way I expect none of us would have foreseen at the close of 2019. Who would’ve thought that we’d wake up one day to find that months of hearings, conferences and trials, some of which had been scheduled years ago, had been administratively adjourned sine die? Or that there would be applications of critical personal and financial importance to our clients that the courts would refuse to hear because their subject matter was not among those listed in a sweeping procedural order issued sua sponte?
Read moreWhen you hear about the word landscape of dispute resolution, the first thing that comes to mind is litigation before a court of competent jurisdiction. However, people need to be made aware that the landscape of dispute resolution quite wider. It includes arbitration and mediation besides litigation.
Read moreThe pandemic forced courts to embrace new technologies as social-distancing requirements prevented access to courthouses, and processes from filing paperwork to holding hearings moved online. But March 2020 was not the first time that courts considered technology adoption. For example, many had already started digitizing their processes for resolving civil disputes.
Read moreIn Halliburton Company v Chubb Bermuda Insurance Ltd,(1) the Supreme Court unanimously upheld the Court of Appeal's decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed. On the facts of this case, while the Supreme Court found that the arbitrator had breached his disclosure obligations, it further held that an objective observer would not have justifiable doubts as to the arbitrator's impartiality.
Read moreTechnological innovation continues to disrupt the status quo in established industries. While new technologies offer many opportunities within the mining industry, the corresponding risks and potential disputes are not far off. This article focuses on these opportunities, risks and disputes that might arise from changes in the mining industry and emerging avenues for avoiding and resolving such disputes.
Read moreWhen a business executive is involved in a dispute—regardless of whether the matter is in court, mediation, or arbitration—the stakes can be immense and may even include the risk of personal liability. Partners and executives should expect that they will have to give testimony and face the fire of cross-examination. Below are some observations on best practices when preparing to testify.
Read moreIn an effort to create a more equitable, less costly, and more efficient means for manufactured/mobile home community landlords and tenants to resolve disputes arising from the rights and duties articulated in the Manufactured/Mobile Home Landlord-Tenant Act (“MHLTA” RCW 59.20), the Washington State Legislature enacted RCW 59.30 back in 2007. It is presently administered by the Washington State Attorney General’s Manufactured Housing Dispute Resolution Program (“MHDRP”).
Read moreIn 2020, as the covid-19 pandemic brings the world to a near-standstill, the moving imagery of the tightrope-walker is more compelling than ever. Caught in this ongoing moment of uncertainty, we are being asked to reimagine many things – how we work, how we socialise, how we travel, and how we live as family units. We are also being asked to reimagine how we manage conflict – from the kitchen table to the boardroom table.
Read moreThe U.S. Department of Health and Human’s Services (HHS) Health Resources and Services Administration’s (HRSA) long-awaited administrative dispute resolution (ADR) final rule went into effect last week, on January 13, 2021. The ADR regulations, which have lingered in HHS since 2010, arrive amid increasing tensions and a flood of 340B-related litigation between covered entities, manufacturers, and HHS.
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