Jay Weil, Author at FedArb

Forewarned is forearmed: The growing trend of mock trials” Published in the Daily Journal

“Find me an expert who lacks expertise.” While this may sound like an oxymoron, it is not an uncommon request when a law firm seeks a former federal judge to serve on a mock panel. The reason: the underlying adjudicator has limited familiarity with the subject matter governing the dispute so the former judge should... Read more »

Fairer, Faster, Better: An Empirical Assessment of Employment Arbitration

Contrary to the media bashing arbitration of employment disputes, a recent Chamber of Commerce study finds it is employees--not the companies--that benefit from arbitration. Specifically: when cases proceeded to adjudication, plaintiffs, who almost always were employees, were more likely to prevail in arbitration than in litigation. During 2014- 18, in decided cases, employee-plaintiffs prevailed in... Read more »

Obstacles For Calif. As It Seeks Spot As Int’l Arbitration Venue – Published in Law360 – July 2, 2019

Lost among current headlines is the demolition of California’s invisible statutory wall that has kept international lawyers from representing their clients in California in multimillion-dollar international arbitration disputes.The “if we build it they will come” question is whether this will result in an influx of new international arbitration cases? Since the 1998 California Supreme Court... Read more »

Making the most of mock arbitrations

Increasingly, international arbitration practitioners are using mock arbitrations – like mock jury trials in the United States – as a valuable tool to assess the strengths and weaknesses of a party’s position and develop an effective way to present their case in the real arbitration. Claudia Salomon and Peter Durning of Latham & Watkins highlight... Read more »

Comparing Policyholder Arbitrations with Reinsurance Arbitrations

In the last twenty years, arbitration proceedings have been on the rise in disputes not only between direct policyholders and insurers (policy arbitrations) but also between insurers and reinsurers and between reinsurers and retrocessionaires (reinsurance arbitrations). Although there are differences between the two categories of arbitrations, there are more similarities than differences. This article reviews,... Read more »

Deal-Dispute Mediating

Most of the business disputes we mediators handle are what I call “one-shot dollar disputes,” involving parties with no continuing relations squabbling over money. This often becomes a zero sum game, with few variables that can prove useful in crafting a creative resolution. And since things usually end up in court if the parties are... Read more »

“A human element that I really savor”

The dynamic between what you do as a mediator or arbitrator vis-a-vis the lawyers is very different from the dynamic of being a judge. When you’re a judge, all eyes in the courtroom are on you. You’re the only person sitting along the wall where the judge sits, the only person sitting on a quasi-elevated... Read more »

What To Do Before, During And After IP Mediation

How intellectual property lawsuits get resolved can be critically important to the parties to those lawsuits. The right to sell an allegedly infringing product or service; the price for that product or service; sometimes the very existence of the company: All can be at stake in an intellectual property case. But our judicial system generally... Read more »

Sherman Act’s Int’l Reach — A Hot Issue In 2013 And 2014

A number of important cases regarding the reach of the U.S. antitrust laws to conduct occurring overseas percolated through the courts in 2013. In particular, courts struggled with the meaning and impact of the Foreign Trade Antitrust Improvement Act,[1] which limits the extraterritorial reach of the Sherman Act. Cases are presently pending in the Second... Read more »

It’s Time For A Change In US Digital Privacy Laws

It is the rare legal issue where the ACLU, the National Association of Manufacturers and the U.S. Chamber of Commerce end up on the same side. But that is currently the situation in a case pending before the federal court of appeals in New York, where these entities and other major corporations have lined up... Read more »

If Google Is A ‘Bad’ Monopoly, What Should Be Done?

Google Inc. is currently subject to antitrust investigations by state attorneys general in the United States, as well as antitrust authorities in the European Union. Google and its allies have mounted a vigorous public defense, arguing that Google’s activity should be immune from antitrust scrutiny or that imposing a remedy on Google would transform antitrust... Read more »

AUO Case Could Have Major Impact On Cartel Investigations

Appellate briefs were recently filed in the case of U.S. v. AU Optronics Corporation[1] pending before the United States Court of Appeals for the Ninth Circuit, which raise issues of critical importance in the prosecution of foreign cartel cases in the U.S.: (1) whether Section 1 of the Sherman Act[2] applies extraterritorially to price-fixing meetings... Read more »

A Rare, Important Robinson-Patman Decision In 9th Circuit

It is rare to see a Robinson-Patman decision these days. However, on July 19, 2013, the Ninth Circuit issued an important Robinson-Patman decision in the case of Gorlick Distribution Centers LLC v. Car Sound Exhaust System Inc., Case No. 10-36083 (9th Cir. July 19, 2013). In this case, the Ninth Circuit affirmed summary judgment on... Read more »

“An important advantage of arbitration”

The result of pivotal decisions by the U.S. Supreme Court is that commercial disputes and sometimes claims by consumers are being removed from the courts and resolved by arbitration, without the benefits of jury involvement, judicial involvement, or appellate review. Since this is such an escalating trend in the overall manner in which our country... Read more »

“Hear not only what they say but what they must surely mean”

Mediation calls for different skills from those of an arbitrator or a judge. The mediator is attempting to bring the parties together and find the common ground that leads to a resolution. Mediation skills resemble the skill sets that lawyers develop. Good lawyers have to be the advocates for their clients, but they also have... Read more »

New Fast Track Arbitration

Perhaps the biggest knock on arbitration* is that most arbitration resembles private litigation —both in terms of costs and in the prolonged nature of the process. FedArb is unique among arbitration firms—it requires the arbitrators to adhere to a schedule and prevents them from requesting a delay. The innovative FedArb Rule provision which addresses the... Read more »

Minimizing Bias in Party Appointed Arbitrators

FedArb is adding an optional provision that enables parties to select arbitrators in a three member tribunal in such a way that the arbitrators do not know which party selected them. Under this process, litigants select arbitrators as before but channel their input through FedArb so that the arbitrator does not know what party selected... Read more »

The Private Jury Trial of a Business Case

Hon. Vaughn R. Walker with co-authors David C. Wheeler and Roy J. Jimenez published an article “THE PRIVATE JURY TRIAL OF A BUSINESS CASE” about using a jury in a confidential, binding business arbitration. Vaughn Walker, a FedArb panelist, writes about the lessons of a jury trial in the context of private arbitration, including the... Read more »

Mediation & arbitration seemed a natural fit

"Leaving a Federal judicial position is not an easy decision. It’s a very good job with interesting responsibilities, unrivaled job security, and the opportunity to have a hand in sometimes important matters in society or the economy. After 21 years, however, I decided that I had seen the full range of cases I was going... Read more »

Three characteristics of a good mediator

What makes a good mediator? Faith S. Hochberg, retired federal judge and experienced FedArb mediator and arbitrator, explains. Preparation Preparation is where top-quality mediators differentiate themselves. I hear from parties and litigators how much they appreciate it when a mediator has read everything they sent and has already started thinking of approaches to spur the... Read more »

Arbitration allows a more collegial atmosphere

As a judge, you know you have to make decisions. That’s helpful for litigants; having been a judge used to deciding motions probably makes you more prepared than the normal arbitrator to grant relief when it’s appropriate, which saves lawyers a lot of time. However, you’re under less pressure as an arbitrator than as a... Read more »

Being a good mediator isn’t too different from being a good judge

Being a good mediator isn’t too different from being a good judge. You have to be able to listen. You want to hear what the parties have to say. You have to be patient and let the case unfold as the lawyers have planned, not as you have planned. You have to understand that it’s... Read more »

The three key skills for mediators

Over three decades in private practice and on the bench enables retired judge Howard Matz especially well-qualified to point out the three critical attributes for mediators: Being a good listener. It’s very critical to listen not only to the words being said but to the meaning of what isn’t being said. That’s how you form... Read more »

South China Sea dispute – what next?

Just before UNCLOS issued its July 12, 2016 decision in the Philippines’s case against China about rocks and islands in the South China Sea, FedArb Chairman Abraham D. Sofaer wrote about the ramifications, predicting that China would move “away from nuanced arguments to more rigid adherence to the regime’s position that China is sovereign over... Read more »

Posts By: Jay Weil