This article originally published in the Daily Journal. It is published here with permission. You can view the original article here. 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… Read more »

This article originally published on NYLJ.com. It is published here with permission. You can view the original article here. 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 for them. If they didn’t pay attention to their dispute resolution… Read more »

This article originally published on Law.com. It is published here with permission. You can view the original article here. 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 breathe. In my experience, that’s the fastest… Read more »

This essay originally published at the Democracy Project with NYU Law. It is published here with permission. You can view the original article here. 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… Read more »

This article originally published in the New York Law Journal. It is published here with permission. You can view the original article here. 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… Read more »

This article originally published in the New York Law Journal. It is published here with permission. You can view the original article here. 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,… Read more »

This article originally published in the Legal Intelligencer. It is published here with permission. You can view the original article here. 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… Read more »

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 »

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 and effort and sometimes extraordinary patience, but the rewards were always beyond measure. It gave me… Read more »

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 the concept of a “mediator’s proposal” and when is it appropriate to be offered by the mediator and accepted by the parties? Mediation… Read more »

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 »

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, of course, exists by contractual design. For this 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… Read more »

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 »

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 »

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 »

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 »

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 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 »

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 strengths and weaknesses in a party’s case and arguments; Show where and how case presentation and cross examination can be improved; Help… Read more »

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 »

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 mass tort claims. My job as a mediator is to search for and bring the parties to a solution. Everything I do from… Read more »

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 »