Mediation News

July 2020

7/07

Mediation will play an important role in resolving the many disputes that will follow the Covid-19 triggered recession.The flexibility of solutions that it offers mean that parties can find creative solutions faster, cheaper and wider than just a money judgment. But in the same way that business and society have and will have to adapt further as a consequence of the pandemic so too must mediation. The opportunity for clients is how to adapt to make best use of the mediation that will emerge in to the “new normal”.

How forced arbitration can hurt Black and brown workers

The Economic Policy Institute finds that 65% of companies with more than 1,000 employees have mandatory arbitration procedures — meaning workers must settle employment disputes through a private mediation system, out of the public eye. The practice that garnered criticism during the #MeToo movement for concealing patterns of sexual harassment in the workplace is again under fire for making it harder for employees to hold employers accountable for racial discrimination.

Important Books for the International Commercial Arbitration Practitioner
Due to the COVID-19 lockdown, John Fellas has had a chance to spend more time than usual with his books. He focuses this column on what he believes are important works in the field of International Commercial Arbitration.

A Guide To Drafting Enforceable Arbitration Clauses

Many businesses choose to include arbitration clauses in their agreements with their customers, vendors or employees. They do so because, as data increasingly shows, arbitration is on average a significantly faster and cheaper means of resolving a dispute in a confidential, flexible and expert manner. And, as courthouses have closed during the coronavirus pandemic, arbitration has become, in many jurisdictions, the only ongoing means of resolving disputes.

Heller v Uber: The Supreme Court finds arbitration clause unconscionable and establishes new test for determining when to stay litigation in favour of arbitration

Heller develops arbitration and contract law in three important ways: It provides guidance on whether domestic or international arbitration legislation applies; It develops the competence-competence principle; and It restates the doctrine of unconscionability.

Fundamentals|An Overview on International Arbitration

There are three major methods of international dispute resolution; namely international arbitration, international commercial litigation, and alternative dispute resolution (ADR). Among these, arbitration is the most popular way of resolving cross-border disputes between states, companies, and individuals.

Mediation: A conflict resolution preference during COVID-19 crisis

Closure of courts and tribunals to curb the spread of the virus will invariably delay justice to companies and individuals alike. In these times, traditional reliance on litigation is a far from optimal way of dealing with conflict. Fortunately, negotiation and mediation are at last beginning to emerge as responses to conflict in its myriad forms and to the challenge of building a more peaceful world.

Pepperdine Caruso School of Law Announces $1 Million Gift from the Honorable Daniel Weinstein (Ret.)

The Honorable Daniel Weinstein (Ret.) has made a generous $1 million gift to the Straus Institute for Dispute Resolution at the Pepperdine University Caruso School of Law. The gift will be used to strengthen the academic program and global reputation of the Straus Institute, which has been ranked as the #1 dispute resolution program in the nation by U.S. News & World Report for 13 of the past 16 years.

FIFA agrees to mediation in dispute with TTFA

FIFA has agreed to settle their dispute with the Trinidad and Tobago Football Association (TTFA) through mediation. According to lawyers from New City Chambers representing the William-Wallace led executive, FIFA indicated on Monday its willingness to settle the matter amicably.

Neighborhood Justice Center offering mediation for renters and landlords during COVID-19

LAS VEGAS (KLAS) — Renters who may be having difficulty paying rent or landlords who may be having issues collecting payment can turn to the Neighborhood Justice Center for free mediation by phone. The center is encouraging all landlords and tenants to enter into payment plans following Gov. Steve Sisolak’s emergency directive that placed a moratorium on evictions for non-payment.

Migrating Away From Traditional Models Of Mediation

During this time of Covid-19, it makes sense to further blend and customize the mediation process. Now more than ever, it is necessary to shift toward more customized approaches that accommodate the challenges and issues arising from the ongoing pandemic.

How Mediation Firm JAMS Became the Dominant Player in the LA Market

An international business, JAMS is considered the dominant company in Los Angeles and the nation when it comes to private mediation and arbitration services.

EEOC Alters Mediation Process Under New Temporary Program

EEOC Chair Janet Dhillon announced a pilot program to change aspects of the agency’s mediation program, including expanding the types of worker bias allegations. Existing procedures limit the kinds of discrimination allegations that qualify. The pilot Dhillon unveiled Tuesday makes more worker allegations eligible for mediation. The program also introduces more technology into the process, “to hold virtual mediations."

June 2020

6/30

Black workers matter, so end forced arbitration

As employment lawyers who have devoted our careers to fighting discrimination in the workplace, we are heartened to see the world awaken to systemic and structural racism after the egregious killings of George Floyd, Ahmaud Arbery and Breonna Taylor.

Supreme Court of Canada Finds Arbitration Clause to Be “Uber” Unconscionable

On June 26, 2020, the Supreme Court of Canada (SCC) released its decision in Uber Technologies Inc. v. Heller. The SCC ruled in favour of the plaintiff, allowing him to proceed with a class-action lawsuit in Ontario courts, rather than through a foreign arbitration.

Questions To Ask When Changing Your Arbitration Clause

In a prior post, we highlighted some questions that companies may want to ask when evaluating whether their arbitration clauses are enforceable. If changes need to be made to those clauses, then companies should consider how to implement those changes so as to ensure those are enforceable too.

Employee Arbitration Agreements Can Include Some Confidentiality Provisions, NLRB Holds

The National Labor Relations Board (NLRB) has held an employer lawfully included confidentiality language in an arbitration agreement its employees were required to sign as a condition of employment. California Commerce Club, Inc., 369 NLRB No. 106 (June 19, 2020).

5 Advantages to Mediation by Video Conference

As COVID-19 cases continue to rise, in-person mediations are not occurring in most instances. Prior to the pandemic, most lawyers disfavored mediation by video conference and believed that mediation in person was necessary to the successful resolution of litigation. However, the global pandemic has forced all of us to take a hard look at those norms and to re-evaluate mediations via video conference.

Mediation Perspectives: Moving Training from Room to Zoom

In the context of COVID-19-related discussions about moving mediation training online, this blog reflects on key strategic and operational questions one should ask to make this decision.

To understand each other, look through each other’s ‘windows’

People have such different histories that it is important to try to unearth how they formed their beliefs.

Global Arbitration and Mediation Services Market: Trends Estimates High Demand by 2027

Research on Arbitration and Mediation Services Market (impact of COVID-19)

Another healthcare mediation success

NHS Resolution's claims mediation service was launched on 5 December 2016 and has since then proved extremely successful as a means of supporting patients, families and NHS staff in working towards the resolution of legal cases and clinical disputes.

University of Michigan, victims of sports doctor to enter mediation in lawsuits

The University of Michigan and potentially hundreds of victims of former university doctor Robert Anderson will enter mediation in September, according to discussions held in federal court Tuesday.

Mediation program for Ottawa Community Housing tenants out of money

A conflict resolution pilot project at three Ottawa Community Housing (OCH) locations is running out of money despite its success in helping residents resolve their problems without formal intervention.

Supreme Court Foreclosure Guide Touts Mediation, Tech

The Ohio Supreme Court’s guide on home foreclosure disputes promotes mediation and technology as major avenues where local courts can forge remedies between homeowners and lenders.

Using Microsoft Teams for mediation

Personal and work lives have changed drastically in 2020, and we are only halfway through the year! If nothing else, the COVID-19 pandemic has shown us how flexible and resilient we need to and can be. It has also reminded us of how “essential” legal services are. What do you do when you are deemed “essential” during a global pandemic? You get creative.

Mediation program for landlords, tenants set to run through at least October

A free mediation program to assist landlords and tenants throughout the COVID-19 crisis has already served more than 100 clients around the Big Island.

Migrating Away From Traditional Models Of Mediation

Mediation is often viewed by lawyers as a "this" or "that" on the spectrum from facilitative to evaluative. In reality, experienced neutrals view mediation as a process customized to the needs of the parties in a particular case.

6/23

Sweating The Details: Court Analyzes User Interface To Uphold Online Arbitration Clause

Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective, however, they must be implemented properly.

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA.

Counterpoint: In defense of arbitration

In deciding if recent criticism is accurate, it's important to look at the facts.

An Arbitration Clause Health Check

Arbitration clauses with class action waivers remain one of the most effective tools that consumer-facing companies can employ to fend off consumer class action litigation. Yet many companies stumble both in getting their customers to agree to the arbitration clause and in drafting a clause that captures all claims that they might face.

John Sturrock QC reflects on mediation and negotiation in new book

Mediator John Sturrock QC has published a collection of articles and blog posts he has written in recent years, containing reflections on mediation, negotiation, politics and other topics, including the current pandemic.

Communities need tools for conflict resolution during troubling times

The stress and uncertainty of COVID-19 has amplified ongoing conflict and created new conflicts. People involved in distress need to know that mediation is an option for problem solving, resolution and access to justice.

Making New Connections: Virtual Mediation Is the New Frontier

Yogi Berra once said, “It’s tough to make predictions, especially about the future.” Well, I am going to make a prediction that in-person mediations will never be the same.

University of Michigan, victims of sports doctor to enter mediation in lawsuits

The University of Michigan and potentially hundreds of victims of former university doctor Robert Anderson will enter mediation in September, according to discussions held in federal court Tuesday.

6/17

Perspectives on Cross-Border Mediation in a Changed World
In this webinar, three expert international mediators will discuss what might be on the horizon in the years to come and their experiences in online cross-border dispute resolution. With Colin Rule, Tania Sourdin, and Geoff Sharp - Friday, June 26, 9am-10:15am Singapore Time.

6/16

Effective Case Management in Arbitration and Virtual Hearings
Check out a free webinar presented through Arbitral Women by Mireze Phillippe and Mohamed Abdel Wahab on June 18th, 2020 at 11:00 Paris and Cairo (CET) / 17:00 Shanghai / 18:00 Seoul / 18:30 Adelaide / 19:00 Sydney and Melbourne.

Commentary: Time for baseball to go to bullpen and call on a mediator to solve labor dispute

Impartial third party could help bring sides together and get MLB season going

The Danger of Mediator’s Proposals

The problem that arose from my frequent use of mediator’s proposals in a high-volume settlement department was that parties soon expected the settlement conference to conclude on that basis.

Jury Trials and Mediation in Philadelphia County: Virtually in Person

The use of virtual technology is likely permanently changing the landscape of civil litigation, including depositions, mediation, and other forms of alternative dispute resolution.

Lucas County begins landlord-tenant mediation program

TOLEDO The program announced Wednesday allocates $140,000 in federal funds to pay for two full-time mediators who will work at the Fair Housing Center. The goal is to have a neutral person to negotiate disputes.

Virtual mediation can peacefully resolve conflicts from home

Conflict is part of being human and is all around us. Sometimes, it can feel unmanageable and impossible to deal with conflicts on our own. It can feel even more overwhelming in times like these, where face-to-face communication is very limited due to COVID-19.

Mediation can resolve farm conflicts

LANSING, Mich. — Farming is stressful enough, but add financial conflicts to the mix and the job is even harder. Mediation is a conflict resolution process that can help solve problems on the farm. “It’s a communication process in which people with a disagreement work with a neutral third party to develop solutions,” said David Gruber, executive director of Roundtable Strategies, during a webinar hosted by AgriSafe.

5 Signs Mediation Won’t Work for Your Divorce, According to a Mediation Expert

Divorce is a not-so-fun choose-your-own-adventure—hire a mediator? Go straight to a divorce lawyer? The circumstances of your split matter a lot, says Dr. Jann Blackstone, co-author of Co-Parenting Through Separation and Divorce: Putting Your Children First and a former child custody mediator for the California Superior Court.

Online Dispute Resolution Pioneer Colin Rule Named Mediate.com CEO

Former eBay and PayPal Exec to Focus on Global Expansion and Online Dispute Resolution

6/09

How to resolve legal issues within the family

If you have legal issues that are causing family conflicts, it is best to find ways to resolve it right away. Below are some ways on how you can resolve legal issues within the family.

‘Got a business dispute? Hire a mediator!’

‘These are unprecedented times,’ said scrap trader Michael Lion of Everwell Resources in China in his role as moderator of an online discussion presented by the Bureau of International Recycling. According to Lion ‘forbearance and understanding’ are very important at the moment and ‘patience is the watchword’, particularly when it comes to dispute resolution.

Early mediation in sports disputes equals efficient outcomes

When we emerge from the current situation, the world of sports will be changed. And disputes are undoubtedly going to increase, particularly disputes that may have been put on hold while the world has been paused. Obtaining the assistance of a trained and neutral third party (a mediator) is often the most efficient method to resolve these disputes quickly and effectively.

Why Now Is a Good Time to Engage in Mediation or Other Streamlined Dispute Resolution
Now, with civil jury trials suspended, courts’ caseloads are rising. The Northern District of California is postponing all civil jury trials through September 30, 2020. Individual judges may offer bench trials by videoconference, and all civil matters will be decided on the papers, unless the presiding judge chooses to conduct a hearing by telephone or videoconference. read more