The April 2010 edition of the ABA Journal features: “International Arbitration Loses Its Grip” by Steven Seidenberg. The article argues that international arbitration is starting to become as expensive and time consuming as litigation in U.S. Courts. Here is an excerpt: Arbitration was supposed to be the solution for international companies seeking to resolve disputes without expensive and drawn-out court battles. But it is starting to look more like the problem. Once a swift, cost-efficient method of resolving international commercial disputes, the process is now often bogged down in long and costly legal proceedings. “It now takes longer, costs more and has many more steps in the procedures,” says Joseph R. Profaizer, of counsel to Paul, Hastings, Janofsky & Walker in Washington, D.C. “There is now broader discovery, larger damages requests, longer briefing schedules, much bigger briefs, far greater reliance on experts and their testimony, and more procedural challenges to the arbitration.” If that sounds suspiciously like U.S.-style litigation, well, that is exactly the problem. Arbitration of international commercial disputes has taken on many of the characteristics of litigation in U.S. courts. And this has upset many companies that rely on arbitration to resolve cross-border business disputes. Richard Naimark Photo by Jordan Hollender “There’s been an increasing chorus of voices that international arbitration is getting too expensive, mostly because it is taking too long,” says Richard W. Naimark, senior vice president of the American Arbitration Association’s International Center for Dispute Resolution. A growing number of businesses appear to be turning away from arbitration and resolving their international commercial disputes the old-fashioned way—in the courts. In a targeted survey of corporate counsel published in 2006 by the School of International Arbitration at Queen Mary, University of London, only 11 percent of in-house counsel said they preferred litigation to settle international disputes. In a follow-up survey conducted two years later, that figure rose to 41 percent—only slightly less than the number who prefer international arbitration. Many businesses, attorneys and international arbitral organizations lament an Americanization of international arbitration. But they are often themselves to blame. “It’s the parties who are causing the problem,” says one expert who spoke on the condition that he not be identified. “They’re the ones picking counsel and deciding how the arbitration is to be run. They’re asking the arbitral associations to stop the parties from bringing the problems on themselves.” Profaizer agrees. “If arbitration is to commit suicide, it will do so of its own choosing, because the parties have chosen to make it more expensive, time-consuming and more like litigation.” RESOLUTION IN PRIVATE Arbitration isn’t dead yet. Far from it. Last year, the number of international commercial arbitrations hit a record high. It may be less popular than it used to be, but arbitration remains the preferred method of resolving international commercial disputes. Edward Mullins Photo by Matthew Pace There are good reasons. For starters, arbitration offers parties the ability to resolve their problems in private. “Unlike the situation in many courts, in a typical commercial arbitration outsiders have no access to the case docket, written submissions or oral hearings. This allows parties to address matters outside the spotlight, which probably helps facilitate the resolution of commercial disputes,” says Mark W. Friedman, a partner in the New York City office of Debevoise & Plimpton. Arbitration also offers parties a neutral forum, where neither side has the “home court” advantage of litigating in its nation’s courts. “You don’t have to learn a new set of rules from some foreign country, so neither side has a procedural advantage. And you don’t have to rely on local counsel you’re unfamiliar with,” says Edward M. Mullins, a partner in the Miami firm of Astigarraga Davis and co-chair of the International Litigation Committee of the ABA Section of Litigation. Read the full article here. Any thoughts? Technorati Tags: law, ADR, arbitration
Continue reading...On March 31, a new amicus brief has been filed with the U.S. Supreme Court on the case Rent-A-Center, West v. Jackson, Docket No. 09-497 (read our previous post here). The case is scheduled to be argued on April 26. The new brief filed by professional arbitrators and arbitration scholars in support of the respondent, argues that the question of whether an arbitration agreement is unconscionable should be decided by a court, not an arbitrator. Links to the case documents, including the new brief can be found at the ABA website here. Stay tuned to Disputing for more legal developments. Technorati Tags: law, ADR, arbitration
Continue reading...The ABA Section of Dispute Resolution announced the 2010 winners of its First Annual Mediation Video Contest on YOUTUBE. An Honorable Mention Winner was “Elder Mediation: A Solution For Families at War” submitted by: Carolyn Rosenblatt, Bruce Tokars Erika Falk, Prescott Cole, Albert Freedman. Check it out: Stay tuned to Disputing for more Honorable Mention Winners! Technorati Tags: ADR, law, arbitration
Continue reading...By Holly Hayes The American College of Healthcare Executives (ACHE) held their annual national meeting in Chicago the week of March 22, 2010. During the meeting, Joseph Bujak, a physician and vice president of medical affairs at 246-bed Kootenai Medical Center, in Coeur D’Alene, Idaho and co-presenter Kathleen Bartholomew, a registered nurse and well-known author on nursing, acted out a unique role-playing presentation on doctor-nurse communication. See the full article here (free registration required). “In the opening skit Bartholomew phones Bujak, the on-call physician, at home in the early morning hours to ask whether she should adjust treatment in response to changing creatinine levels in a kidney failure patient. The physician berates the nurse for waking him, because she’s the fourth person to do so and because she doesn’t seem to even understand the clinical difference between rising and falling creatinine levels. ‘I’m surrounded by incompetents!’ Bujak says. ‘You’d have to be a Neanderthal to think I would put up with this abuse,’ Bartholomew tells the audience.” Both presenters agreed, one of the main reasons for physician-nurse communication problems was that doctors often don’t know the nurses. In our series on using mediation skills in the health care setting, we used an example of physician-nurse communication problems in Part I, where we highlighted the use of the principled negotiation method to resolve conflict. One of the key points in this method is separating the people from the problem as seen in Part II. In their book, Getting to YES, Roger Fisher and William Ury outline three categories to think about in terms of dealing with people: perceptions, emotions and communication. 1. Perceptions: In the doctor-nurse situation described above, the conflict exists because it exists in each side’s perceptions. If the nurse or the physician can put themselves in the other’s shoes, it allows them to gain useful information to help address the overriding patient care issues. 2. Emotions: When parties recognize and understand emotions, both theirs and the other persons, they are freed from the burden of unexpressed emotion and can more likely work on the problem. During the skit, it was stated, “nurses see doctors as being able to flout the rules, which destroys the sense of collegiality on which the new team-centered approach to healthcare relies.” If physician and nurse had better communication, the emotion around this issue could be recognized and addressed. 3. Communication: Skills that can be learned to improve communication include: listen actively and acknowledge what is said, speak to be understood, use “I” rather than “you”, and speak with a purpose in mind and communicate what purpose the information will serve. For more on using mediation techniques in healthcare, see our Part III, Part IV and Part V. Let us know if you have had any experience with disruptive healthcare providers and how it was addressed. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.