At some point in a business relationship, differences of opinion are likely to arise. In businesses where there are equal owners of the company, it is important to ensure that there are carefully drafted governing documents or a standalone buy/sell agreement that detail the process for resolving a conflict or impasse. 50/50 business owners should review the company's operating agreement, shareholders agreement, or partnership agreement to determine the process for resolving that impasse.
Read moreDon't Let Lies Infiltrate The Mediation Process
Mediation is quickly becoming an even more important form of adjudication as courts have been significantly impacted by the COVID-19 pandemic.
With the second surge in reported cases, courts across the nation have been forced to further postpone jury trials until at least March or April. Thus, mediation will be a more attractive option for parties looking to quickly resolve disputes and for courts to address overflowing dockets.
Read moreAnnoy the Mediator at Your Own Risk: Negotiation Tactics and Missteps to Avoid
Rule number one in any mediation? Don’t tick off the mediator.
First and foremost, effective mediation advocates collaborate with their mediators to prioritize and advance their client’s interests. Mediators help people resolve disputes that they can’t resolve themselves, organizing and managing a negotiation process that usually results in a settlement or deal. When lawyers (or their clients) negotiate in unproductive ways—making it harder than it already is to resolve a thorny dispute—the process becomes less efficient, less productive, less enjoyable and more likely to reach an impasse.
Read moreEamon Harrington: The rise in mediation and remote mediations during Covid-19 restrictions
Eamon Harrington, dispute resolution partner at Comyn Kelleher Tobin, looks at how Covid-19 and Lockdown 3.0 is having an impact on the court system and on mediations to resolve disputes.
The President of the High Court earlier highlighted the obligation of all stakeholders to ensure that the administration of justice is not brought to a standstill because of Covid-19.
Read moreWhen is an error a serious irregularity? Court demonstrates approach to correcting arbitration awards
The High Court recently found that a tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that caused substantial injustice. Based on this, the court remitted an arbitration award back to the tribunal for correction so that the tribunal would have the room to carry outs its stated intention to award substantial damages to one of the parties.(1)
Read moreSnapshot: mediation procedure in Austria
Procedure
Counsel and witnesses
Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?
It is standard practice that parties in commercial mediation are assisted by lawyers. In cases characterised by a high degree of (technical) complexity, it is also quite typical that the mediator is supported by expert witnesses. Fact witnesses are only rarely seen in commercial mediations.
Read moreICC Mediation
The ICC International Center for ADR proposes services including expert appraisal and dispute boards, which can be used separately, successively or concurrently. The ICC International Center for ADR has noted that there has been a growing use of the ICC mediation rules due to the pandemic. That said, the use of mediation to resolve international disputes still pales in comparison to the use of arbitration, with 45 ICC mediations registered in 2020 as compared to 946 ICC arbitrations.[1]
Read moreIn brief: enforcing and challenging arbitral awards in France
Parties may request arbitral tribunals to interpret an award, correct clerical errors or make an additional award where the tribunal failed to decide on a claim (article 1485 CCP). The request shall be presented within three months of the award’s notification (article 1486 CCP). The reconstituted arbitral tribunal shall rule exclusively over the rectification request without altering the meaning of the award.
Read moreDistrict court confirms enforcement of foreign arbitral award, denying arguments that tribunal was not impartial and enforcement was contrary to U.S. public policy
Petitioner Pao Tatneft (“Tatneft”), previously OAO Tatneft, initiated arbitration against the Ukrainian government. The case arose out of the parties’ joint ownership of CJSC Ukrtatnafta Transnational Financial and Industrial Oil Company (“Ukrtatnafta”) (Pao Tatneft v. Ukraine, Civil Action No. 17-582, (D.D.C. 2020) [click for opinion]).
In 1998 and 1999, Tatneft made agreements with other Ukrtatnafta shareholders to vote as a 56% majority bloc. In January 2007, the Ukrainian Privat Group acquired a 1% interest in Ukrtatnafta, and subsequently obtained Ukrainian judgements purporting to invalidate the shareholder resolutions by which Tatneft had obtained its interests in Ukrtatnafta. This resulted in Tatneft being barred from management of Ukrtatnafta and ownership of its shares.
Read moreNicaragua Needs International Mediation
November seventh is just around the corner. The great opportunity to peacefully and democratically channel the serious social and political conflict which arose in Nicaraguan in April 2018, will inexorably arrive in these coming months. So much suffering and so much pain produced in that tragic month, must have its turning point that day. So many demands contained in the protests of those days, could have their relief and their expression in the citizen vote, as it should be.
Read moreHow Can We Best Make and Maintain Quality Mediators?
It was during late March 2020, soon after the pandemic first made global headlines, that a group of leading mediators and mediation trainers realized on a Zoom call that the ONLY mediation then taking place in the U.S. and around the world was suddenly "online mediation." Further, we also realized that ALL mediation training was also then remarkably taking place online. Further, despite this near complete shift of mediation services and training to the online environment, we also realized that there were barely any standards, guidance or established best practices for online mediation and online mediation training. We decided that we owed it to ourselves and to the global mediation community to explore whether this void can be effectively addressed.
Read moreAn Arbitration Solution to Surprise Medical Billings
The solution is a compromise proposed by a bipartisan group of Congressional legislators that involves both a binding quasi-arbitration process and comparisons with “in-network” payment rates.
Read moreDoes the Supreme Court’s Halliburton judgment make a splash in the pool of arbitrators for global project arbitrations?
On 27 November 2020, the Supreme Court handed down its decision in Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, concerning whether and to what extent an arbitrator may accept multiple appointments in related matters without making disclosure to the party who is not the common party. Freshfields represented the London Court of International Arbitration (LCIA) in its intervention in the appeal.
Read moreFurther Guidance on Conflicts of Interest in International Arbitration: The Role of Experts
A recent English Court of Appeal judgment provides important guidance on the role of expert witnesses in international arbitration, with an emphasis on potential conflicts of interest and duties owed by expert witnesses to their clients.
Read moreFamily mediation in a pandemic - the challenges and opportunities for separating couples
The past year has caused each of us to reflect on what is most important in our lives. Family. Friends. Freedom. It has also made us look forward, to life post-pandemic; and this, along with the pressures of lockdown, home-schooling, and everything else 2020 had to chuck at us, has understandably resulted in lots of couples deciding to go their separate ways.
Read moreCould Google really leave Australia?
The government is introducing a law to address a long-bubbling row over whether tech giants should pay for news that appears in search or is shared on their platforms.
The proposed law would mandate that Google has commercial agreements with every news organisation - or enter forced arbitration, something Google says is "unworkable".
"If this version of the code were to become law, it would give us no real choice but to stop making Google Search available in Australia," the regional director, Mel Silva, said.
Australian Prime Minister Scott Morrison told Google: "We don't respond to threats".
Read moreICC Launches Revised Arbitration Rules for 2021
Key Points:
To increase transparency, parties must disclose “the existence and identity” of third-party funders.
To increase efficiency, arbitral tribunals may decide to conduct hearings remotely, irrespective of any objections from the parties.
New provisions allow the joinder of additional parties and the consolidation of multi-party or multi- contract arbitrations.
Airbnb Looks To Arbitrate COVID-19 Repayment Dispute
Law360 (January 22, 2021, 6:37 PM EST) -- Airbnb has asked a California federal court to compel arbitration in a proposed class action challenging the home-sharing platform's purported failure to properly repay hosts and guests for canceled bookings during the COVID-19 pandemic, saying the dispute's claims must be arbitrated under an agreement the parties signed.
Read moreBeginning at the End: How mediation can take couples along the pathway to a binding court order
Many couples welcome mediation as a chance to sort out matters directly with each other, rather than discuss matters at arms length via third parties, or go to court. However they also want matters to have a final and binding outcome, and they frequently assume that mediation will not be able to help them with that.
Read moreLack of funds does not enable parties to escape arbitration
Arbitration does not provide for legal aid or an exemption from paying costs. Some regard this as a disadvantage of alternative dispute resolution. One party's lack of funds to pay for its share of arbitration costs can indeed deprive it of its day in arbitration court. This issue recently came before the Warsaw Court of Appeals, which decided that a party's lack of funds to launch arbitration does not render the arbitration agreement defective.(1)
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