News
Mediation Saves Mediation in Massachusetts
April 18, 2013
In an appellate mediation over the fate of a mediation program, two sides have agreed to preserve mediation. Back in 2011, Springfield, MA, passed two ordinances to deal with the foreclosure problem in the city. The first instituted a mediation program. The second required lenders to post a $10,000 bond for any foreclosures filed for vacant properties. Lenders filed suit in U.S. District Court, where the judge affirmed Springfield’s right to mandate both the bond and mediation. You can read about...
April 18, 2013
In an appellate mediation over the fate of a mediation program, two sides have agreed to preserve mediation. Back in 2011, Springfield, MA, passed two ordinances to deal with the foreclosure problem in the city. The first instituted a mediation program. The second required lenders to post a $10,000 bond for any foreclosures filed for vacant properties. Lenders filed suit in U.S. District Court, where the judge affirmed Springfield’s right to mandate both the bond and mediation. You can read about...
Texas State of the Judiciary
April 18, 2013
Pro Se Litigants I have spoken about the indigent. But there is a dark secret that plagues our justice system as a whole. We in the judiciary must bring this secret to light. The sad fact is that the middle class and small businesses find our system unworkable and unaffordable. They believe there are too many unnecessary lawsuits, coupled with incessant legal wrangling that drags out cases. And they feel that even if they are entitled to a remedy for a legal wrong, they cannot afford the fees...
April 18, 2013
Pro Se Litigants I have spoken about the indigent. But there is a dark secret that plagues our justice system as a whole. We in the judiciary must bring this secret to light. The sad fact is that the middle class and small businesses find our system unworkable and unaffordable. They believe there are too many unnecessary lawsuits, coupled with incessant legal wrangling that drags out cases. And they feel that even if they are entitled to a remedy for a legal wrong, they cannot afford the fees...
Insurer Estopped to Compel Arbitration After It Opposing Same Motion Earlier
April 18, 2013
The Texas Court of Appeals affirmed a trial court order denying New Hampshire Insurance Company’s motion to compel arbitration of Magellan Reinsurance Company’s nine common law and statutory claims. New Hampshire and Magellan entered into a reinsurance agreement whereby Magellan agreed to accept 100% of New Hampshire’s obligations under automobile dealer insurance policies. Pursuant to the agreement, Magellan established a trust account from which New Hampshire was authorized to withdraw funds...
April 18, 2013
The Texas Court of Appeals affirmed a trial court order denying New Hampshire Insurance Company’s motion to compel arbitration of Magellan Reinsurance Company’s nine common law and statutory claims. New Hampshire and Magellan entered into a reinsurance agreement whereby Magellan agreed to accept 100% of New Hampshire’s obligations under automobile dealer insurance policies. Pursuant to the agreement, Magellan established a trust account from which New Hampshire was authorized to withdraw funds...
Federal Arbitration Act Reigns Supreme
April 18, 2013
In Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500 (2012), the U.S. Supreme Court recently overturned a decision by the Oklahoma Supreme Court that enjoined an arbitration proceeding on the ground that the relevant provision of the underlying employment contract was flatly prohibited by Oklahoma law. According to the U.S. Supreme Court, the Oklahoma Supreme Court had no business interpreting the enforceability of the employment contract under Oklahoma law, at least not before the arbitrator...
April 18, 2013
In Nitro-Lift Technologies, L.L.C. v. Howard, 133 S. Ct. 500 (2012), the U.S. Supreme Court recently overturned a decision by the Oklahoma Supreme Court that enjoined an arbitration proceeding on the ground that the relevant provision of the underlying employment contract was flatly prohibited by Oklahoma law. According to the U.S. Supreme Court, the Oklahoma Supreme Court had no business interpreting the enforceability of the employment contract under Oklahoma law, at least not before the arbitrator...
Carnegie Mellon Launches Negotiation Academy for Women
April 17, 2013
Women, then, have not had a dog’s chance of writing . . . That is why I have laid so much stress on money and a room of one’s own. Virginia Woolf, A Room of One’s Own I’ll be writing much more about Carnegie Mellon’s Negotiation Academy for Women in the coming months, but I want as many of our readers as possible to know about its existence right away. It was founded by Linda Babcock of Women Don’t Ask fame – the Getting to Yes for women. I think of Women Don’t Ask as the Bible...
April 17, 2013
Women, then, have not had a dog’s chance of writing . . . That is why I have laid so much stress on money and a room of one’s own. Virginia Woolf, A Room of One’s Own I’ll be writing much more about Carnegie Mellon’s Negotiation Academy for Women in the coming months, but I want as many of our readers as possible to know about its existence right away. It was founded by Linda Babcock of Women Don’t Ask fame – the Getting to Yes for women. I think of Women Don’t Ask as the Bible...
Investor-State Mediation
April 17, 2013
However effective and broadly adopted the Convention and Rules of the International Centre for Settlement of Investment Disputes (ICSID) have been, the ICSID Conciliation Rules have enjoyed very little respect and have seldom been used. This is especially to be regretted, because ICSID arbitrations, though relatively few in number, are often time-consuming, recondite, expensive and magnets for ancillary proceedings. It has also been observed that the outcomes of ICSID arbitrations are less...
April 17, 2013
However effective and broadly adopted the Convention and Rules of the International Centre for Settlement of Investment Disputes (ICSID) have been, the ICSID Conciliation Rules have enjoyed very little respect and have seldom been used. This is especially to be regretted, because ICSID arbitrations, though relatively few in number, are often time-consuming, recondite, expensive and magnets for ancillary proceedings. It has also been observed that the outcomes of ICSID arbitrations are less...
What Constitutes Waiver of a Right to Arbitrate under the FAA?
April 17, 2013
It is well established that courts generally enforce the strong federal policy in favor of arbitration. That is not to say, however, that a court will automatically dismiss a case subject to an arbitration clause in favor of alternate dispute resolution. Before doing so, the court must first determine whether a party has relinquished its right to arbitrate and what standard to use in making that determination. Section 3 of the Federal Arbitration Act (FAA),9 U.S.C. § 3 , states that where there...
April 17, 2013
It is well established that courts generally enforce the strong federal policy in favor of arbitration. That is not to say, however, that a court will automatically dismiss a case subject to an arbitration clause in favor of alternate dispute resolution. Before doing so, the court must first determine whether a party has relinquished its right to arbitrate and what standard to use in making that determination. Section 3 of the Federal Arbitration Act (FAA),9 U.S.C. § 3 , states that where there...
Killing Them with Kindness: ‘Consumer-Friendly’ Arbitration Clauses after Concepcion
April 17, 2013
In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are unenforceable, if those agreements are contained in standard form consumer contracts. But, arguably, Concepcion leaves open and unresolved the viability of a state law challenge to a bilateral arbitration clause which is shown, in a particular case, to impose a forfeiture of the claimant’s ability to vindicate...
April 17, 2013
In AT&T v. Concepcion, the Supreme Court struck California’s so-called “Discover Bank rule” – a judge-made rule providing that arbitration agreements attended by class action waivers are unenforceable, if those agreements are contained in standard form consumer contracts. But, arguably, Concepcion leaves open and unresolved the viability of a state law challenge to a bilateral arbitration clause which is shown, in a particular case, to impose a forfeiture of the claimant’s ability to vindicate...
Applying Concepcion, Court Compels Arbitration Notwithstanding Cost Prohibitiveness
April 17, 2013
Current and former students filed a putative class action against an institution alleging that the institution misrepresented the quality of its education and the prospects for post-graduation employment. When the institution moved to compel arbitration, the students sought to challenge the enforceability of the arbitration clause in court, notwithstanding a delegation provision that provided for arbitrability to be decided by the arbitrators. The court initially refused to enforce the delegation...
April 17, 2013
Current and former students filed a putative class action against an institution alleging that the institution misrepresented the quality of its education and the prospects for post-graduation employment. When the institution moved to compel arbitration, the students sought to challenge the enforceability of the arbitration clause in court, notwithstanding a delegation provision that provided for arbitrability to be decided by the arbitrators. The court initially refused to enforce the delegation...
Judge Differentiates Tweeting and Blogging from Courtroom
April 16, 2013
Does it make sense for a judge to allow blogging but ban tweeting from the courtroom? That was the question in a recent Massachusetts murder trial, and the judge’s explanation of why he did it has failed to satisfy media observers. The recent first-degree murder trial of Nathaniel Fujita attracted national media to Superior Court Judge Peter Lauriat’s courtroom. Fujita, 20, was convicted March 7 of brutally murdering his former high school girlfriend. Given the media interest in the case,...
April 16, 2013
Does it make sense for a judge to allow blogging but ban tweeting from the courtroom? That was the question in a recent Massachusetts murder trial, and the judge’s explanation of why he did it has failed to satisfy media observers. The recent first-degree murder trial of Nathaniel Fujita attracted national media to Superior Court Judge Peter Lauriat’s courtroom. Fujita, 20, was convicted March 7 of brutally murdering his former high school girlfriend. Given the media interest in the case,...
