What Former Federal Judges See That Your Trial Team Doesn’t

Litigation war-gaming and mock exercises for complex commercial disputes There is a specific moment in almost every mock exercise that surprises counsel. It is not when the panelist identifies a weak argument — teams usually sense those already. It is when a former federal judge dismisses an argument that everyone on the case team considered... Read more »

California’s SB 940 and the Evolving Strategic Landscape of Mass Arbitration

It’s been nearly a year since SB 940 took effect in California, fundamentally altering consumer arbitration by (1) allowing consumers to resolve disputes in small claims court (if the dispute qualifies), even if the contract mandates arbitration; and (2) allowing traditional discovery, subject to the approval of the arbitrator, even if the arbitration agreement prohibits... Read more »

MassArb 2.0: From Batches and Bellwethers to MDL-Style Fairness

Recent public commentary has raised alarm bells about mass arbitration protocols being misused by defendants to “delay justice” or “tilt the playing field.” That concern is valid—but it doesn’t apply universally. It would be a mistake to treat all structured arbitration models as procedurally unfair or inherently suspect. In fact, done right, mass arbitration can... Read more »

Avoiding Pitfalls in Preparing a Mediation Term Sheet

By John M. Delehanty Reaching a settlement in mediation is a big accomplishment—but it’s not the finish line. Ideally, once there’s a meeting of the minds, the parties should draft and sign a formal settlement agreement right away. But in reality, especially after long hours of negotiation, most parties and their counsel opt to draft... Read more »

Rethinking Mass Arbitration: Building on MDL’s Proven Blueprint

Mass arbitrations are an important new way for customers to protect their legal rights.  Unfortunately, arbitration was designed for individualized disputes—not mass actions involving thousands of nearly identical claims. Yet legacy ADR providers keep trying to force mass arbitrations into an individualized approach that it was never built to support. The result? Massive filing fees,… Read more »

Arbitration Umpire Selection: What Makes Sense

Arbitration is intended to be an expeditious, cost-effective, and streamlined way of resolving disputes. Parties can avoid the delays and expenses that come with resolving a dispute in a courtroom. Court dockets contain hundreds of cases with a single trial judge, who is contending on a daily basis with multiple motions, hearings, orders to show… Read more »

What I Learned at the Harvard Law School Program on Negotiation

As a federal judge, my exposure to mediation was the traditional method of having the mediator shuttle back and forth between the parties (and their lawyers), in private sessions --often lasting more than a day. Shortly after I retired, I had lunch with Ken Feinberg, one of the most famous and successful alternative dispute resolution... 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 »

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 »

Billion-Dollar Technology Dispute Resolved with ‘Gig Judiciary’

Outsourcing aspects of ongoing federal litigation may be the new way to effectively and fairly resolve complex litigation. Recently, litigants found themselves sparring in a complex, multi-jurisdictional antitrust case over important but outdated TV technology. The litigation expanded to so many parties (over fifty) and jurisdictions (US and overseas) that it threatened to make the... 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 »

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 »

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 »

Three Bench Strengths

It’s helpful to have the background of having been on the bench in three respects: You have some basis for credibility when you state to the parties what you think the likely outcome is going to be in court. Chances are, you’ve heard that argument or something similar, and have seen how juries have reacted.... Read more »

Mediation and arbitration on the rise

The percentage of civil cases that actually reach trial in the Federal courts is estimated to be about 1 percent. Faith S. Hochberg, retired federal judge and experienced FedArb mediator and arbitrator, explains some of the reasons cases don't reach the trial stage: Litigation takes businesses away from what they do best, which is business,... Read more »