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Articles & Publications
AI in Arbitration and Litigation: The Jagged Frontier
by Doak Bishop and Karl Hennessee A six-part series What can artificial intelligence contribute to arbitration and litigation—and where does human judgment remain essential? FedArb panelist Doak Bishop and co-author Karl Hennessee explore AI’s capabilities, limitations, and practical applications in this six-part series published in Alternatives to the High Cost of Litigation. The series examines... Read more »
A Primer for Attorneys Who Are Retained To Represent Clients in an Arbitration
Reprinted with permission from the New York State Bar Association. Lawyers are often retained to represent a client in a business or insurance dispute where the contract that the client brings to the lawyer contains a mandatory arbitration clause. While the lawyer is a seasoned litigator who has tried many jury cases and argued many... Read more »
The Expanding Role of Receiverships in the Commercial Division
Hon. Elizabeth H. Emerson (Ret.) Previously published in The Legal Brief, The Magazine of the Suffolk County Bar Association. I recently had the privilege of presenting on the topic of Receiverships during the annual Judicial Seminars. The summer seminars are organized by the New York State Judicial Institute where the Honorable Kathie E. Davidson serves as... Read more »
The Finality Paradox: En Banc Third Circuit Confronts the Limits of Arbitral Authority
FedArb panelist Jose L. Linares (R) and Mark Makhail (L) of McCarter & English. The court’s ultimate en banc decision carries sweeping national implications, threatening to redefine the strategic landscape for advocates, corporate entities, and domestic arbitrators alike. Reprinted with permission from the New Jersey Law Journal. Download the pdf. By Jose L. Linares and Mark... Read more »
NYSBA’s Arbitration Training: A Valuable New Tool for Arbitrators and Counsel
Reprinted with permission from the New York State Bar Association. Download the pdf. By John Burritt McArthur On July 17-19, 2023, the New York State Bar Association held its 11th annual arbitration training program, co-sponsored by Cardozo Law School and covering every major step in arbitration process and the major questions arbitrators frequently need to... Read more »
The Whys and Hows of a Mediator’s Proposal
Reprinted with permission from the New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article. It is a common refrain in mediations, “how about making a mediator’s proposal?” The answer frequently is “not yet” or “that’s not what I want to do.” What are the details behind... Read more »
Real-World Mediation Strategies for Case Resolution
Real-World Mediation Strategies for Case Resolution In this recorded webinar, Heidi Freeman (Partner and Chair of Thompson Hine’s Sustainability group) joins forces with Steven Greenspan (Mediator at FedArb and former Chief Litigation Counsel for RTX) to pull back the curtain on the mediation process. Drawing from decades of experience on all sides of the table—outside... Read more »
What Mock Exercises Reveal That Briefs Cannot
Reprinted with permission from The New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article. Lawyers devote enormous time and care to crafting briefs. They refine arguments, polish language, and anticipate counterpoints. Yet even the most carefully written submission cannot fully answer a critical question: how… Read more »
Testing Your Arbitration Dispute in a Mock Arbitration
Reprinted with permission from the New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article: A valuable preparation option for any high-stakes arbitration is the mock arbitration, which serves many of the same purposes as mock trials and jury research for court cases. Mock arbitrations serve to: Identify... Read more »
Fixing ‘Unfixable’ Errors in Arbitration Awards
Reprinted with permission from the February 18, 2026 issue of The New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article. Imagine that you are a pilot, physician, lawyer, accountant, engineer, military commander, plumber, teacher, or anyone whose job is to make decisions. Now imagine that… Read more »
How to Avoid and Break Mediation Impasse
Reprinted with permission from the New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article: The very reason for mediation is that the parties are in dispute, whether it a broken business contract, frustrated joint venture partners, a terminated executive, a securities class action, insurance counterparties or... Read more »
Mediator’s Proposals After ABA Opinion 518: Ethics, Effectiveness, and the Reality of Breaking Impasse
Reprinted with permission from the February 13, 2026 issue of The New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article.. Mediator’s proposals have long occupied a contested space in mediation practice. For some neutrals, they are an indispensabletool for breaking impasse; for others, they raise… Read more »
ADR and the Future of Climate Change Disputes
Reprinted with permission from the January 16, 2026 issue of The New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article.. As the impacts of our changing climate become more apparent, litigation has emerged as one of the primary tools for holding fossil fuel companies and… Read more »
ABA Opinion 518: A Reaffirmation of Established Ethics Rule; Not a Constraint on Effective Lawyer-Mediators
This article originally published in the Connecticut Law Tribune. Click here for the PDF. The American Bar Association recently issued Formal Opinion 518 addressing the ethical obligations of lawyers serving as third-party neutral mediators. While the Model Rules of Professional Conduct have long included provisions governing lawyer-mediators, Opinion 518 interprets those existing rules to address,… Read more »
Arbitrating securities fraud cases: Balancing efficiency with investor rights
This article originally published in the Daily Journal. Click here for the PDF. The SEC now allows mandatory arbitration in IPOs, reshaping litigation risk for public issuers, raising governance and insurance questions, and making expert, well-structured arbitration crucial for fair, efficient resolution of securities disputes. The U.S. Securities and Exchange Commission’s September 2025 policy shift… Read more »
Designing Business Disputes: How Shall We Fight?
Reprinted with permission from the October 28, 2025 issue of the New York Law Journal. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article. Experienced lawyers are creatures of habit. They sometimes overlook that clients have the freedom at any time to design dispute resolution procedures that work best… Read more »
Anchoring Mediation in the Merits: A Practical Approach for Neutrals
Reprinted with permission from the September 30, 2025 issue of Law.com. Further duplication without permission is prohibited. All rights reserved. Download a PDF of this article. In complex disputes, mediators sometimes fall into the trap of rushing too quickly toward numbers—talking demands, offers, and bottom lines before the mediation has even had a chance to… Read more »
Participatory Democracy in Action
This article originally published in NYU Law’s Democracy Project. Click here for the PDF. In this essay for the Democracy Project, FedArb panelist David F. Levi looks back on his time mediating a dispute for the Waste Isolation Pilot Plant permit in New Mexico. He shares how citizen groups, government officials and contractors worked together… Read more »
Mediating the Billion-Dollar Case
This article originally published in the New York Law Journal. Click here for the PDF. Mediating every case requires digging into the case, active listening to the parties, good communication and sensitivity on the part of the mediator. But the billion-dollar case or even those involving multiple hundreds of millions of dollars are often company-threatening… Read more »
Four Decades in Securities Litigation: What’s Changed and Why It Matters
This article originally published in the New York Law Journal. Click here for the PDF. When I began practicing securities litigation nearly 40 years ago, the landscape was vastly different. Accounting fraud dominated the headlines, plaintiffs’ firms were relatively few and far between, repeat plaintiffs were common, class actions were quickly filed with little pre-suit… Read more »
Ethical Constraints When Using Artificial Intelligence in Arbitration
This article originally published in the Legal Intelligencer. Click here for the PDF. Artificial intelligence (AI) is becoming de rigueur in the legal community, with law firms and lawyers independently utilizing a variety of AI resources to streamline research, formulate documents and digest discovery, exhibits, depositions and fee details. In arbitration, AI may expedite proceedings… Read more »
What the latest ruling tells us about the future of Mass Arbitrations
The Ninth Circuit ruled that Starz Entertainment LLC can’t be forced to individually arbitrate 7,300 video-privacy claims. The consumers had alleged the company unlawfully shared their personal information with Meta Platforms Inc. and Google LLC. The court wrote that the ADR provider, not Starz, made the decision to consolidate the arbitrations. In this video FedArb... Read more »
Mediating Executive or Other Key Employee Disputes
A successful mediation requires sensitivity and attention to the needs of each side, but mediating executive or key employee disputes requires some specific considerations and alertness to sensitivities that merit discussion. It’s a Person’s Career After All! First, and foremost, we are dealing with a person’s career –the place where the person has spent a… Read more »
My Journey to the Commercial Division, A World Class Business Court
This article originally published in the New York State Bar Journal. Click here for the PDF. One of the great joys of my professional career is the 21 years that I spent as a Justice of the New York State Supreme Court Commercial Division. The work was challenging and required a great deal of creativity... Read more »
Efficiency Dept. Should Consolidate Antitrust Enforcement
In 1978, former President Jimmy Carter established the National Commission for the Review of Antitrust Laws and Procedures to recommend ways to expedite litigation, improve remedies, and review certain immunities and exceptions. As the late Arthur Austin, my former antitrust law professor at Case Western Reserve University School of Law, observed, however, the commission was… Read more »
‘Samsung’ Highlights the Costs of Arbitrating Mass Claims
The arbitration of mass claims is now available through all of the major ADR providers. The American Arbitration Association (AAA), JAMS, FedArb and CPR have developed special rules to govern the resolution of such claims. A bit of history is warranted. Most consumer contracts require that all disputes be resolved by arbitration. These contracts generally... Read more »
Arbitration Umpire Selection: What Makes Sense
Arbitration, of course, exists by reason, considerable thought should be given to the terms of any contractual provision that provides for the resolution of disputes by arbitration. The parties are free to design an arbitration provision that forecloses certain issues that could arise once there is a dispute that needs to be resolved by arbitration.... Read more »
Confessions of Two Former General Counsels—Has Arbitration Changed or Have We?
Ten years ago if you asked us what we thought of arbitration we probably would not have had too many positive things to say. As former general counsels, we approached commercial disputes that could not be resolved via negotiation or mediation as bound for court. Not that we welcomed the idea of litigation, but we… Read more »
Exploring California’s Reputation: From Wild West to Arbitration Desination
California is well positioned as an arbitration venue, particularly for U.S. to Asia disputes, due to its geography, leading universities, experienced arbitrators, and capable judiciary. 1. California’s reputation and how to improve it. You have mentioned that California was, and in some quarters still is, viewed by Europeans as the wild, wild, West with out-of-control… Read more »
Lessons for International Arbitration From Recent U.S. Climate Change Litigation
The international arbitration community has publicly embraced the expectation that climate-change-related disputes submitted to arbitration will increase exponentially over the coming decade. Arbitral institutions and individual arbitrators, law firm practitioners, and academics have all forecasted that cases related to or impacted by energy production and distribution (both fossil fuel and alternative), supply chain issues and… Read more »
9th Circuit Arbitration Ruling Could Have International Implications
A recent U.S. Court of Appeals for the Ninth Circuit decision in Patrick v. Running Warehouse LLC offhandedly recognized an unusual and extremely important aspect of California law that the international arbitration community should keep in mind. And while the reminder raises a host of choice of law questions, it ultimately may make California law… Read more »
Leave Chevron Deference Alone to Sustain Agency, Judicial Balance
FedArb experts argue Chevron deference should be preserved Overruling it would empower nonexperts, create uncertainty The US Supreme Court is considering whether to overrule or severely cut back on what is known as Chevron deference. It would be a mistake for the court to do that. Federal agencies such as the Federal Energy Regulatory Commission,… Read more »
Preparing an Effective Mediation Statement
Preparing an effective mediation statement is a critical part of the mediation process. The mediation statement is often the document that gives the mediator his or her first impression of counsel and the client. It is particularly important when the mediator does not hold a joint session but proceeds immediately to caucuses. The purpose of… Read more »
Ten Ways To Know When To Undertake Mediation
Practitioners often wrestle with the question “when is the best time to undertake mediation of a dispute?” Is it before litigation has ensued although the controversy has arisen? Is it at the outset of the litigation once the complaint has been filed? Is it only after there has been some discovery, an exchange of documents… Read more »
What Panama Canal Award Ruling Means For Int’l Arbitration
The Aug. 18 Grupo Unidos por el Canal SA v. Autoridad del Canal de Panamá decision by the U.S. Court of Appeals for the Eleventh Circuit is an important decision for international arbitrators and practitioners in several respects, including some unusual procedural twists and a surprising substantive conclusion that should not go unnoticed. The ruling… Read more »
Don’t Ignore the Benefits of Joint Sessions in Mediation
Joint Sessions Are Valuable; How to Conduct Them. Many mediators and counsel discourage the use of joint sessions in mediation. Counsel often believe that having the parties together in the same room (either physically or virtually) will exacerbate the tensions already present in the litigation and hinder resolution. Mediators often believe, with some justification, that… Read more »
Arbitrator Selection Is a Key Component of the Arbitration Process
Arbitrator selection is a critical component of every arbitration proceeding given that the selection will determine who will adjudicate the dispute. Commercial arbitration is a creature of contract. The parties in their contract provide for the governing arbitral organization and rules, if any, and how the arbitrator or arbitrators are to be selected. The parties,… Read more »
Merger Guidelines Should Provide For Competition Trustees
On July 19, the Department of Justice and Federal Trade Commission announced proposed revised merger guidelines. Immediately, negative critique appeared in the legal and business press, despite the fact that it is highly unlikely these draft guidelines will be substantively changed for political reasons. The proposed guidelines list 13 factors that alone or in combination… Read more »
Former Arizona chief justice to mediate between California and tribes
The tribes claim Gov. Gavin Newson violated the Indian Gaming Regulatory Act in negotiations over reviewing their casino gaming compacts. Four tribes and the state of California have agreed to allow former Arizona Chief Justice W. Scott Bales to mediate their long-running disputes over renewing gaming compacts. Bales served two years as Arizona’s solicitor general… Read more »
A Breakdown of the Latest Proposed SEC Cyber Regulations
Contact the author As many readers may know, the SEC has been engaged in rule-making on various cybersecurity issues intended to modernize its existing regulations and keep in line with emerging privacy and data security risks and norms. If adopted, it is likely that recently-covered entities will materially increase the compliance burdens on SEC-regulated entities… Read more »