Commercial Articles

Efforts by Arbitrator to Mediate Dispute in China Taint Arbitration Award (7/12/11)
Keith Seat

The High Court in Hong Kong refused to enforce an arbitral award from China because one of the party-appointed arbitrators acted as a mediator and met with a person connected with one of the parties to propose a settlement. Although the court found that lack of transparency and other concerns tainted the arbitral award, the court made clear that it was not rejecting the concept of med-arb, which is expressly permitted in Hong Kong and common in Asia.

International Law Office (June 7, 2011); Gao Haiyan v. Keeneye Holdings Ltd., HKEC 514 (April 12, 2011)
 

Mediation in Sports (7/12/11)
Keith Seat
Mediate.com News Editor, Keith Seat, summarizes the recent application of mediation to resolve a number of high value commercial sports disputes.
 

How Neutrals Can Provide Early Case Management of Construction Disputes (7/06/11)
John Lande
This article describes how neutrals can provide early case management and resolution services to help parties in construction disputes resolve them more efficiently.
 

eBay Resolution Center Up for Dutch Innovating Justice Awards - Needs Your Vote! (6/08/11)
Colin Rule
The largest Online Dispute Resolution platform in the world, the eBay and PayPal Resolution Center, is up for an award from the Dutch Innovating Justice competition. The final three candidates will be selected by online popular vote, so If you've got time, please visit the program site and vote for “Modria: The eBay/PayPal Dispute Resolution Center.”
 

WIPO Developments Include Creative Barcodes (5/25/11)
Keith Seat

The World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center will provide mediation services for Creative Barcode members; Creative Barcode is a new mechanism for facilitating safe disclosure of creative concepts and ideas in business deals and proposals by using barcoded files. In more traditional endeavors, some 2,700 cybersquatting cases were filed with the WIPO Center in 2010, setting a new record. The cases were handled by over 300 panelists in 49 countries in 13 languages. The WIPO Center also continues to handle significant numbers of intellectual property disputes.

Dexigner (March 22, 2011); Ag-Ip-News.com (March 31, 2011)
 

'Jury Mediation' May Be Helpful in Some Disputes (5/17/11)
Keith Seat

In a twist on mini-trials, “jury mediation” brings together typical jurors to receive a short presentation from the parties, including key documents and even witness testimony, after which the “jury” deliberates and provides its conclusions and reactions in conversation with a mediator and trial consultant. The goal is to decrease uncertainty and increase the information on which parties can make informed settlement decisions in mediation.

New Orleans City Business (March 25, 2011)
 

Court Considers Preliminary Injunction Despite Contract’s Mandatory Mediation Provision (5/17/11)
Keith Seat

While recognizing that the parties’ franchise agreement provided that disputes must go through mediation prior to litigation, the federal court entertained plaintiff’s effort to maintain the status quo during mediation by seeking a preliminary injunction. However, the court denied plaintiff’s request after analyzing the factors required for a preliminary injunction.

Edelman v. Certified Restoration Dry Cleaning Network, No. 11-10781 (U.S.D.C. E.D. Mich., March 11, 2011)
 

Mediate Your Way to a Sale (4/18/11)
Vivian Scott
Sometimes trying to close a business deal feels more like a conflict than it does a negotiation. Rather than go head to head with a potential customer, consider using a few mediation skills instead
 

'Opt-out' Settlement Agreement Not Binding Where No Acceptance of Proposal Terms (3/30/11)
Keith Seat

The parties were not bound by a mediation agreement signed by their counsel, which provided a ten-day period for objections after which the agreement was to be binding, because the agreement also included a settlement “proposal” that was to be accepted or rejected within a specified period. That proposal was not accepted, so under standard contract principles there was no meeting of the minds. The failure of either party to opt out within the ten-day objection period did not result in an enforceable agreement, since there had never been acceptance of the settlement terms.

Powerhouse Custom Homes, Inc. v. 84 Lumber Co., No. A10A2351 (Ga. App., January 24, 2011).
 

The Tail Wagging The Dog: Strategies For Settling Attorneys Fees-Driven Cases (2/21/11)
Malcolm Sher
How many times has a defense attorney declared litigation to be “unsettle able” because plaintiff attorney fees have far exceeded the value of the case? How many times has a plaintiff lawyer responded that the “defense tactics” were the cause? Using the context of a landlord-tenant “habitability” dispute, this article examines how statutes and behavior illustrate the problem and suggests strategies for minimizing it.
 

5 Negotiating Tips For First Time Home Buyers (2/21/11)
Jeff Thompson
Homeownership is a big step and it is important to make sure that you approach it wisely. When you do find the home that you are looking for, there is often the opportunity to negotiate a price that is lower than the list price. You need to know what you are doing, however, because negotiating poorly can cause you to lose the home that you truly want.
 

Second Canadian Province Enacts Commercial Mediation Statute (1/12/11)
Keith Seat

Ontario has followed Nova Scotia in enacting a statute specifically addressing commercial mediation. Ontario’s Commercial Mediation Act of 2010 permits agreements reached in mediation to be registered and enforced as court judgments. Commercial mediation does not include disputes over insurance benefits, collective bargaining disputes, computerized mediation or informal attempts by judges or arbitrators to encourage settlement while presiding over litigation or arbitration proceedings. The statute requires certain disclosures by mediators relating to possible conflicts and bias and sets forth mediation confidentiality requirements. The statute is based on the UNCITRAL Model Law on International Commercial Conciliation, which has also been incorporated by several states in the U.S. when enacting the Uniform Mediation Act. The Ontario statute focuses on pre-litigation mediation and does not apply to the mandatory mediation provisions of the Rules of Civil Procedure. The statute took effect with commercial mediations that commenced on or after October 25, 2010 in Ontario or even outside the province if the parties stipulate coverage of Ontario law.

Stikeman Elliott LLP (November 5, 2010); Law Times (December 6, 2010)
 

No Writing, No Settlement (12/27/10)
Peter Phillips
Recently this blog featured a post about a mediated settlement agreement that was enforced because it was memorialized in a written document containing the agreement’s essential terms. Here we have the obverse: A case that was decided in the same month – July 2010 – in which a mediated settlement agreement was held unenforceable because it did not subsist in a writing.
 

Communiqué on the ODR and Consumers Colloquium Vancouver, BC, Canada November 2-3, 2010 (12/07/10)
Colin Rule, Doug Leigh
This communiqué distills the output of the experts’ deliberations at November 2-3 Vancouver Colloquium on Cross Border Consumer Dispute Resolution.
 

Valuing Commercial Enterprises In Business Litigation (12/06/10)
Victoria Pynchon
Much of the complex commercial litigation that I mediate requires that businesses be valued. Although we litigators tend to hire experts to do the dirty work we went to law school to avoid (math!!) we do need to understand our own consultants' valuations as well as those of our adversaries in order to perfect our strategy and prevail at trial.
 

Steps Must Be Taken for Funding Mediation and Legal Services for Foreclosure Victims (11/17/10)
Diane Thompson
Diane Thompson of the National Consumer Law Center made a point that you can get much better compliance on loan modifications if you actually fund mediation programs and legal services attorneys. There are mandatory mediation programs up and running in Philadelphia and New York, and they have been far more successful in preventing foreclosures – by about 50%.
 

Update on Home Foreclosure Mediation (11/16/10)
Keith Seat
This is another in a series of updates on the development of Foreclosure Mediation throughout the United States by Mediate.com's Mediation News Editor Keith Seat.
 

Keynote Speech by Hong Kong Secretary for Justice at ICC Commercial Mediation Workshop November 12, 2010 (11/12/10)
Wong Yan Lung, SC
The following is the keynote speech by the Secretary for Justice, Mr Wong Yan Lung, SC, at the International Chamber of Commerce (ICC) Dispute Resolution Services: Amicable Dispute Resolution (ADR) Workshop November 12, 2010.
 

Google Settles Buzz Class Action for $8.5 Million in 14-Hour Mediation (11/09/10)
Keith Seat

Class action litigation against Google over the privacy provisions of its Buzz social-networking application was resolved in a 14-hour long mediation, with a plan for Google to donate $8.5 million (less plaintiffs’ legal fees) to Internet privacy and education organizations. Google also modified its privacy provisions to the satisfaction of plaintiffs. Members of the plaintiff class will provide recommendations of possible recipient organizations for Google to review and formulate into a formal proposal for the court’s final review.

The Harvard Crimson (September 7, 2010); PCMag.com (September 3, 2010)
 

Significant Increases in UK Alternative Dispute Resolution Reported (11/09/10)
Keith Seat

A detailed report by TheCityUK concludes that mediation and arbitration have risen sharply in the UK over the last two years following the financial crisis. The report notes that the total number of disputes resolved by mediation and arbitration in the UK increased by 78% to nearly 35,000, while the number of disputes involving international parties rose by 59% to 5,300. TheCityUK is an independent body which was established in May with support from the government’s City of London Corporation.

LegalWeek.com (September 21, 2010); Report: Dispute Resolution in London and the UK 2010
 

“Mediation Is A Gamble”: A Sobering Review And Critique Of Mortgage Mediation Programs (11/01/10)
Robert Benjamin
Home foreclosures have reached a crisis level nationwide, significantly contributing to a tepid economic recovery. For perhaps the first time in history, mediation has been systematically employed in an innovative attempt to manage some parts of this crisis. Early reviews are, however, mixed. Gretchen Mortgenson, a well regarded business reporter for the New York Times wrote an article critical of the process as it is being done in Nevada, one of the hardest hit states. This article examines the professional and ethical issues and concerns by mediators practicing in large scale mediation programs.
 

Agricultural Mediation Programs Funded (10/04/10)
Keith Seat

The federal Agricultural Credit Act of 2010 was enacted on August 16, 2010, authorizing appropriations through FY2015 for state agricultural mediation programs.

GovTrack.us (August 16, 2010); USDA Agricultural Mediation Program
 

IMI Adds Founding Institution in Mideast (10/04/10)
Keith Seat

The Bahrain Chamber for Dispute Resolution has been granted full “Founding Institution” status by the International Mediation Institute, and its CEO has joined the IMI Board. The Chamber is IMI’s fifth Founding Institution and the first in the Mideast. The Chamber recently completed its first case since its founding in January 2010, and intends to provide the region with a best-in-class international ADR center and help Bahrain become the Gulf’s leading center for ADR services.

Law Fuel.co.nz (August 2, 2010)
 

Federal Reserve Banks Facilitate Industry Consensus on Mobile-Payment Technologies (9/28/10)
Keith Seat

Mediation by the Federal Reserve Bank of Atlanta and the Federal Reserve Bank of Boston has led to surprising progress and consensus on mobile-payment technologies by a group of about 20 representatives from leading players in telecommunications and electronic payment. The first meeting was in January, followed by sessions in May and July, with another set for October. The group has overcome hobbling disagreements and is now collaborating on a paper to be circulated to the financial and telecom industries.

Digital Transactions.net (July 27, 2010)
 

SBA Encourages Greater Use of ADR in Appeals (9/28/10)
Keith Seat

The Small Business Association recently modified its regulations covering appeals before its Office of Hearings and Appeals, including two provisions to encourage greater use of alternative dispute resolution. The first adds Sec. 134.216(b) to permit a judge to offer ADR to the parties at any time. The second provision adds Sec. 134.216(c) to permit designation of either a judge or an OHA attorney to serve as an ADR neutral. Other clarified provisions which address mediation are in section 134.804-807.

Federal Register.gov (August 6, 2010)