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Special Masters: How To Make the Best of Both Worlds, Part V
February 6, 2015
In Part Four we began to discuss solutions (not just problems), and urged that a first step in incentivizing counsel to hold down litigation costs is to have a neutral oversee the process of discovery closely enough (1) to make it in counsel’s interest to act reasonably in the first place; and (2) to rule on unreasonable demands or failures to respond to discovery quickly, so that they gain no tactical advantage. A second step is to have a decision-maker employ not just legal expertise, or subject...
February 6, 2015
In Part Four we began to discuss solutions (not just problems), and urged that a first step in incentivizing counsel to hold down litigation costs is to have a neutral oversee the process of discovery closely enough (1) to make it in counsel’s interest to act reasonably in the first place; and (2) to rule on unreasonable demands or failures to respond to discovery quickly, so that they gain no tactical advantage. A second step is to have a decision-maker employ not just legal expertise, or subject...
Even in the Ninth Circuit, Courts Should Not Intervene Mid-Arbitration
February 6, 2015
It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may determine if the arbitration met the basic fairness requirements of the Federal Arbitration Act. However, in a 1973 case the Ninth Circuit had indicated there may be some “extreme” circumstances where mid-arbitration intervention was appropriate. This week, the Ninth Circuit...
February 6, 2015
It is generally accepted that courts may only engage in the very front and very back end of an arbitration. At the outset, courts may determine whether the parties agreed to arbitrate the dispute, and at the end, courts may determine if the arbitration met the basic fairness requirements of the Federal Arbitration Act. However, in a 1973 case the Ninth Circuit had indicated there may be some “extreme” circumstances where mid-arbitration intervention was appropriate. This week, the Ninth Circuit...
Why are Attorneys Afraid of Conflict in Mediation?
February 5, 2015
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them. Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement. They would pick up the phone and call their opposing counsel and either work things out on their own or try the case. As...
February 5, 2015
The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them. Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement. They would pick up the phone and call their opposing counsel and either work things out on their own or try the case. As...
Corpus Christi COA Holds Arbitration Agreement Was Not Unconscionable in Construction Dispute
February 5, 2015
In Valli Construction, Inc. v. Alvites Concrete Services, No. 13-13-00295-CV (Tex. App – Corpus Christi, December 30, 2014),...
February 5, 2015
In Valli Construction, Inc. v. Alvites Concrete Services, No. 13-13-00295-CV (Tex. App – Corpus Christi, December 30, 2014),...
Who Decides Whether New Claims Are Precluded By Old Arbitration? An Arbitrator, Says 2d Circuit
February 5, 2015
We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders. But, if your adversary brings new claims that you believe have already been determined in arbitration, where do you go to shut down those new claims — court or arbitration? A recent decision from the Second Circuit clarifies that arguments about issue or claim preclusion should generally be made in arbitration. Citigroup,...
February 5, 2015
We all know that the doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata) apply with equal force to both arbitration awards and court orders. But, if your adversary brings new claims that you believe have already been determined in arbitration, where do you go to shut down those new claims — court or arbitration? A recent decision from the Second Circuit clarifies that arguments about issue or claim preclusion should generally be made in arbitration. Citigroup,...
The Mediator as Process Designer
February 4, 2015
A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their...
February 4, 2015
A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their...
Electronic Signature May Not Bind to Arbitration Agreement in California
February 4, 2015
Gary Gansle and Nisha Patel, attorneys at Patton Boggs, recently summarized a decision from the California Court of Appeal, holding that an employee's electronic signature to an arbitration agreement may not have been sufficient evidence that the signature was the act of the employee. The court then refused to enforce the arbitration agreement. The California's court's decision is here. The decision is worth reading because it discusses how the company should have authenticated the employee's electronic...
February 4, 2015
Gary Gansle and Nisha Patel, attorneys at Patton Boggs, recently summarized a decision from the California Court of Appeal, holding that an employee's electronic signature to an arbitration agreement may not have been sufficient evidence that the signature was the act of the employee. The court then refused to enforce the arbitration agreement. The California's court's decision is here. The decision is worth reading because it discusses how the company should have authenticated the employee's electronic...
SCOTUS Court Asked to Review Case Where Mediator Conflict Existed
February 4, 2015
The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations...
February 4, 2015
The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations...
Baseball Arbitration
February 3, 2015
Experienced arbitrators and mediators know about "baseball arbitration." Now is the season. You can find a list of the 175 players who filed for arbitration courtesy of the New York Times. The Times also reports that 95 players already settled, with David Price of the Detroit Tigers agreeing to a one-year, $19.75 million deal last Friday. Those cases that don't settle will be resolved by a three-person panel in February. Of the 146 players who filed for arbitration last year, only 3 needed decisions...
February 3, 2015
Experienced arbitrators and mediators know about "baseball arbitration." Now is the season. You can find a list of the 175 players who filed for arbitration courtesy of the New York Times. The Times also reports that 95 players already settled, with David Price of the Detroit Tigers agreeing to a one-year, $19.75 million deal last Friday. Those cases that don't settle will be resolved by a three-person panel in February. Of the 146 players who filed for arbitration last year, only 3 needed decisions...
Supreme Court of Texas Reverses Appellate Court’s Holding in Arbitration Waiver Case
February 3, 2015
The Supreme Court of Texas has reversed an appellate court’s holding that a company waived its right to arbitration by substantially invoking the judicial process. In Richmont Holdings, Inc. v. Superior Recharge Systems, L.L.C., No. 13-0907 (Tex., December 19, 2014), Richmont Holdings purchased the assets of another company, Superior Recharge Systems, through an affiliate. The parties’ purchase agreement stated they would resolve any future disputes through binding arbitration. At the time...
February 3, 2015
The Supreme Court of Texas has reversed an appellate court’s holding that a company waived its right to arbitration by substantially invoking the judicial process. In Richmont Holdings, Inc. v. Superior Recharge Systems, L.L.C., No. 13-0907 (Tex., December 19, 2014), Richmont Holdings purchased the assets of another company, Superior Recharge Systems, through an affiliate. The parties’ purchase agreement stated they would resolve any future disputes through binding arbitration. At the time...
