Guest Posts | Loree Reinsurance and Arbitration Law Forum

Archive for the ‘Guest Posts’ Category

Introducing Guest Blogger John (Jay) McCauley

June 23rd, 2010 Arbitrability, Arbitration Practice and Procedure, Authority of Arbitrators, Guest Posts, Practice and Procedure, Unconscionability, United States Supreme Court 1 Comment »

Today we are pleased and honored to feature an article by our good friend John (Jay) McCauley, a distinguished arbitrator, mediator, attorney and professor of arbitration law. Jay’s article is entitled “A Commercial Arbitrator’s Take on Rent-A-Center v. Jackson,” and can be found here.

Jay debunks the media hype surrounding the United States Supreme Court’s recent decision in Rent-A-Center v. Jackson, ___ U.S. ___, slip op. (June 21, 2010), and argues (persuasively) that the case is a reasonable, natural and modest interpretation of the Court’s prior Federal Arbitration Act jurisprudence. With one minor caveat we agree wholeheartedly with his insightful and pragmatic view of the case.

Our view of the decision may differ very slightly in that we believe that its scope is broader than the holding might suggest. Jay is absolutely correct when he says that the decision permits parties to challenge delegation agreements (agreements to arbitrate arbitrability) on unconscionability grounds. He says that there may be “dozens” of grounds on which to make such a challenge, and we think he is right about that, too.

But we think that it will be very difficult to mount a successful challenge specifically directed at a delegation agreement. And if we are right about that, then the practical effect of the decision will be that delegation agreements will usually be enforced, enabling arbitrators to decide most unconscionability challenges. The scope of the decision is, in our view, therefore quite broad.

We nevertheless agree with Jay that the decision makes perfect sense in light of the Court’s prior Federal Arbitration Act jurisprudence, and apart from our caveat about the decision’s scope, we are otherwise on the same page as Jay. Of course, it may turn out that challenges to delegation agreements prove more successful than we think they will.

Jay is an American-Arbitration-Association certified arbitrator and mediator, and serves on the AAA’s Large Complex Case Panel. He is a Fellow of the College of Commercial Arbitrators and a Distinguished Fellow of the International Academy of Mediators. He offers arbitrator and mediator services through Judicate West and Professional Mediation Associates.

Jay also serves as an adjunct professor of arbitration law at Pepperdine Law School, the University of Missouri-Kansas City Law School and the Werner Institute of Creighton Law School. An AV-rated attorney, he is a member of the California bar and is admitted to practice before the United States Supreme Court. He is listed in “Best Lawyers in America” for ADR, and in “Southern California Super Lawyers,” also for ADR. You can visit his website here.

We hope you enjoy Jay’s article.

Introducing Guest-Blogger Donald R. Philbin, Jr.

October 28th, 2009 Guest Posts, Mediation, Negotiation No Comments »

Today we are proud to feature our good friend and colleague Don Philbin as a guest blogger.

As readers may know, Don is an arbitrator, mediator, negotiator, AV-rated attorney, and business consultant, whose website is here. He is an experienced commercial litigator, and was general counsel and president of hundred-million dollar plus communications- and technology-related companies. He is listed in The Best Lawyers in America (Alternative Dispute Resolution; Woodward/White 2007, 2008). In addition to his other work Don frequently writes and speaks on topics pertinent to ADR, and is an adjunct professor at Pepperdine University Law School’s prestigious Straus Institute for Dispute Resolution. He serves as a co-manager of LinkedIn’s Commercial and Industry Arbitration and Mediation Group (here), and tweets about ADR-related topics on Twitter (follow Don here). Don can be contacted here.

Don was kind enough to send us a post on one of his favorite topics: brain science and its relevance to negotiation. His post briefly describes a seminar on this subject, which he attended the weekend before last, and which he found particularly compelling. Read about it here.

Don Philbin Guest Post: Brain Science Improves Negotiation

October 28th, 2009 Commercial and Industry Arbitration and Mediation Group, Guest Posts, Mediation, Negotiation 4 Comments »

By Donald R. Philbin, Jr.

Psychology has informed negotiation theory for years. (See here.) As a result, we know that all negotiators:

Are overconfident – we all live in Lake Wobegon where the grass is greener and everyone is above-average;
Reactively devalue offers coming from an adverse party – even if they happen to be in our interest (“it can’t be good for us if it came from them”); and
Have different risk tolerances – and react differently to the same offer.

But faster magnetic resonance imaging (“MRI”) machines have allowed brain scientists to monitor a subject’s reactions to different stimuli in real time. That has accelerated the pace of discovery and expanded research frontiers. Vanderbilt Law School, for instance, has received grants to investigate how insights of brain research affect the legal system. (See here.) When used in an effort to prove guilt or innocence, there is inevitable controversy. But learning how the human brain often functions can be good training for negotiators and the mediators that often assist them.

I have long been interested in the ways economics and psychology can broaden the typical legal analysis in mediation. The ABA recently published “How Brain Science can Make You a Better Lawyer” (here), a broad survey, but not particularly insightful negotiation theory. So I took a course titled, “Neuro-Collaboration: How New Perspectives from the Neurosciences Can Enhance Your Collaborative Conflict Resolution Skills” (here) the weekend before last in beautiful Woodstock, Vermont (yes, the leaves were still changing). Continue Reading »

Disputing Publishes Part IVB of our Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp. Guest Post

September 21st, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, Class Action Waivers, Consolidation of Arbitration Proceedings, Guest Posts, Practice and Procedure, United States Court of Appeals for the Second Circuit, United States Supreme Court 2 Comments »

On September 1, 2009 Disputing published Part IVA of our four-part guest post on Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198). In Part IVA (here) we considered whether the question in Stolt-Nielsen was one for the court or the arbitrators to decide, and predicted that at least five Justices of the United States Supreme Court will hold that the court must decide it. If we are correct, then the Supreme Court will consider on a de novo basis whether the arbitration panel had the authority to impose class arbitration on the Stolt-Nielsen parties.

Today, Disputing published Part IVB of our guest post (here) in which we consider how the Supreme Court might rule on the merits of the question. We believe that at least five Justices will rule that the arbitrators should not, in the face of the agreements’ silence, have imposed class arbitration where, as here, there is no basis in the Federal Arbitration Act, New York state law or federal maritime law for implying consent to class arbitration.

The Supreme Court’s decision in Stolt-Nielsen may have some important ramifications for both commercial and consumer arbitration. So for advance coverage, tune into Disputing….

Disputing has Published Part IVA of Our Stolt-Nielsen v. AnimalFeeds Guest Post

September 1st, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, Consolidation of Arbitration Proceedings, Guest Posts, United States Court of Appeals for the Second Circuit, United States Supreme Court 4 Comments »

On August 17, 2009 Disputing published Part III of our four-part guest post on Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (Part III available here). In Part III we examined the background of Stolt-Nielsen and identified four issues that the United States Supreme Court will likely confront when it decides the case.

Today Disputing published Part IVA (here), in which we consider the first issue: Who decides whether class arbitration can be imposed on the parties when their arbitration agreements are silent on that point? Put differently, is the question one of arbitrability for the court or one of procedural arbitrability or contract interpretation for the arbitrators?

Resolution of the question defines the standard of review. Questions of arbitrability are reviewed de novo on the law and for clear error on the facts. But if the question is one of procedural arbitrability or contract interpretation, the standard is the deferential one provided by Federal Arbitration Act Section 10, the one applied by both the District Court and the United States Court of Appeals for the Second Circuit.

The arbitrators in Stolt-Nielsen decided that class arbitration was authorized by the parties’ arbitration agreements even though the agreements said nothing about class arbitration. We believe that at least five Justices will conclude that this question was one of arbitrability for the Court to decide, and will either decide the issue de novo or remand it to the lower courts to decide.

The Supreme Court’s decision in Stolt-Nielsen may have some important ramifications for both commercial and consumer arbitration. So for advance coverage, tune into Disputing….

Disputing has Published Part III of our Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp. Guest Post

August 17th, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, Consolidation of Arbitration Proceedings, Guest Posts, United States Court of Appeals for the Second Circuit, United States Supreme Court 1 Comment »

Last week we announced that Disputing had published Part II of our four-part guest post on Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (Disputing post here). Today, Disputing published Part III, which discusses the background and procedural history of the Stolt-Nielsen case and identifies the key issues that the United States Supreme Court will likely consider in deciding the case.

The Supreme Court’s decision in Stolt-Nielsen may have some important ramifications for both commercial and consumer arbitration. And soon-to-be Justice Sotomayor may provide the swing vote in the case. So for advance coverage, tune into Disputing….

Introducing Guest-Blogger Professor Peter Friedman: “The Argument for Judicial Power to Void Mandatory Arbitration Agreements and Class Action Waivers on State Public Policy Grounds”

August 17th, 2009 Class Action Arbitration, Class Action Waivers, Commercial and Industry Arbitration and Mediation Group, Consolidation of Arbitration Proceedings, Guest Posts, Uncategorized No Comments »

Today we present a guest post by Professor Peter Friedman concerning the argument for judicial power to void class action waivers and arbitration agreements based on state public policy grounds.

I met Peter through the LinkedIn Commercial and Industry Arbitration Group (learn about the group here). He’s a Visiting Assistant Professor at the University of Detroit Mercy Law School, where he teaches Contracts and Core Concepts. He also teaches U.S. Contract Law at the University of Windsor and the Universiteit van Amsterdam. He is currently on leave from the Case Western University School of Law, where he has been on the faculty since January 1996. He’s a very smart, creative guy who is devoted to the law, critical analysis of important legal issues, and, even more importantly, legal education.

Prior to entering the academic world, Peter spent eleven years immersed in the practice of commercial litigation in New York City, most recently as a partner in the New York City office of Akin Gump Strauss Hauer & Feld LLP. He graduated with his J.D. from the University of Michigan Law School in 1984 and his A.B. in Ancient Greek and Latin from Brown University in 1981.

Since August 2008, Peter has written a blog, Ruling Imagination: Law and Creativity, that explores the ways law affects creative endeavors and the ways creativity informs the practice of law. Prior to Ruling Imagination, he authored What is Fair Use?, a blog he wrote in connection with an assignment in one of his legal writing classes in which his students drafted cross-motions for summary judgment for a copyright infringement lawsuit. Just this month Peter has also begun a blog, 1L Contracts, in which he intends to explore issues connected with the law of contracts as they arise through the coming academic year in his Contracts class at Detroit Mercy. Continue Reading »

Disputing Has Published Part II of our Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Co. Guest Post

August 10th, 2009 Arbitrability, Authority of Arbitrators, Class Action Arbitration, General, Guest Posts 1 Comment »

Last week we announced that Disputing had published Part I of our four-part guest post on Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) (post here). Today, Disputing published Part II, which discusses Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), the case that provides the legal landscape against which the Supreme Court will decide Stolt-Nielsen. You can read Part II here. We expect Disputing will publish Part III later this week, with Part IV to follow.

Disputing Guest Post: Class And Consolidated Arbitration Under the Federal Arbitration Act: What Issues Will The United States Supreme Court Confront in Stolt-Nielsen, S.A. V. AnimalFeeds Int’l Co.?

August 6th, 2009 Arbitrability, Authority of Arbitrators, Consolidation of Arbitration Proceedings, Guest Posts, United States Court of Appeals for the Second Circuit, United States Supreme Court 4 Comments »

The Loree Reinsurance and Arbitration Law Forum is delighted to guest post once again on Karl Bayer’s and Victoria VanBuren’s wonderful ADR blog, Disputing. Because Victoria and I have both written fairly extensively about Hall Street Assoc. v. Mattel, Inc, 128 S. Ct. 1396 (2008), and about two of the most frequently cited cases construing Hall Street’s dictum on manifest disregard of the law — Citigroup Global Markets, Inc. v. Bacon, 562 F.3d 349 (5^th Cir. 2009) and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir. 2009), petition for cert. granted June 15, 2009 (No. 08-1198) – and because the United States Supreme Court has granted certiorari in Stolt-Nielsen, we thought that our joint-readership might appreciate an analysis of the issues that the Supreme Court will likely address – or at least face — in that case. That’s what we have set out to do in a four-part guest post, Part I of which was published today. (Check it out here.)

As readers may already know, the issue before the United States Supreme Court is whether it is consistent with the Federal Arbitration Act to impose class arbitration on parties whose arbitration agreement is silent on that point. This is the same issue that the Supreme Court set out to decide in Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), but ultimately never did because a plurality of the Court ruled that there was a disputed issue of contract interpretation as to whether the agreements in that case were, in fact, silent on class arbitration, which resulted in a remand to the arbitrator. But in Stolt-Nielsen the panel ruled, and the parties agreed, that the contracts are silent on this key point, so the Supreme Court will presumably confront the issue head on.

The Supreme Court’s decision next Term may have some important ramifications for both commercial and consumer arbitration. And soon-to-be Justice Sotomayor may provide the swing vote in the case. So for some advance coverage, tune into Disputing….

Guest Post — Mediating Reinsurance Disputes: A Case Study

May 14th, 2009 Guest Posts, Mediation, Reinsurance Mediation 2 Comments »

Introduction

I am very pleased that Phil Loree Jr. asked me to guest blog for the Loree Reinsurance and Arbitration Law Forum. I have known Phil for quite some time and have worked with him on various matters over the years. Phil suggested that I write something about my experiences mediating reinsurance disputes. This guest post is a revised version of an article I published in the September 2006 edition of JTW News, a popular, U.K.-based reinsurance trade publication.

As the aggravation, expense and amount of time required to arbitrate or litigate escalate, parties to reinsurance disputes are beginning to opt either by contract or ad hoc agreement to mediate reinsurance disputes. For them, depending upon the case, less is more; that is, compared to arbitration or litigation, mediation is a less aggressive, less costly, less damaging and less divisive alternative to tip the balance of power and opportunity in both parties’ favor. A careful, experienced and patient mediator views disputes between parties, not as a battle, but as an opportunity to empower them to structure a resolution that best meets their respective short and long term needs.

Despite this trend, many still claim mediation is unnecessary, expensive and unproductive — complaints based mostly upon its non-binding nature and prior “bad” experiences with ineffective mediators. From my discussions with many satisfied client and lawyer participants and my own work mediating cases, I have found that parties and their counsel can and do benefit in many ways — even if no settlement immediately results – from mediating their reinsurance disputes before an effective mediator. Continue Reading »