The benefits that mediation brings to international arbitration are similar to the benefits that parties see in any mediation: costs saved, the perspective of a neutral third party gained, mutual agreements made possible, and so forth. One advantage of mediation that is unique in the international arbitration setting is that mediation assists parties in avoiding the international arbitration. These words - "international arbitration" - tend to strike fear in many inhouse counsel hearts. In my experience, the problem with international arbitration was rarely cost, time, or efficiency - though ..read more

The AAA recently conducted a study on how parties and advocates can take steps to increase efficiency and decrease expenditures associated with arbitration. The institution surveyed over 400 arbitrators who had issued awards in large and complex cases, with at least $1 million in claims or counterclaims. Questions focused on: Leading causes of case escalation Use of motion practice and discovery Ways to encourage economy and efficiency of process Discovery No one will be surprised that the #1 cause of protracted arbitration delay and cost, from the arbitrator's perspective, was discovery; 3 ..read more

As the August 7 signing ceremony for the Singapore Convention draws near, here are some thoughts for parties to consider before launching in to a mediation. In this post, I’ll review factors to consider in preparing for mediation. Further, leading up to the signing, this blog will feature additional tips on structuring the mediation process, opening sessions, negotiation, impasse, and settlement considerations. Background Last year, the United Nations Commission on International Trade Law (UNCITRAL) Working Group II finalized the draft Convention on International Settlement Agreements Resulti ..read more

Efficiency in arbitration is something that parties - and arbitrators - continually strive for. From careful clause drafting to limitations on discovery and chess clocks at hearings, the profession has created many creative options for streamlining the arbitral process. Baseball arbitration, also known as final offer arbitration ("FOA"), is increasingly utilized by parties to achieve their goals of efficiency and economy in dispute resolution. FOA is a process by which parties submit their final award proposals to an arbitrator, and the arbitrator is obligated to issue one or the other award ..read more

Where cost and efficiency are constant concerns for parties in arbitration, project management offers solutions. Project management and arbitration have a lot in common, but the two worlds do not seem to overlap with much frequency. This is unfortunate because the precepts of project management offer many opportunities for arbitrators to streamline the process and carefully monitor its efficiency. This post will outline the parallels between a "project" and and an arbitration and explain how project management and arbitration work together very well. It will also serve as the first of a serie ..read more

A Mediator's Perspective If you know your case, you know the law, and you've spoken with the mediator... How much more effort is really required to prepare for mediation? Beyond drafting your mediation statement, what additional preparations should you make before you arrive at the negotiation table? After all, negotiation is a fluid process, involving multiple people and varied interests and perspectives... While I agree that the flexibility and customization are integral elements of the mediation process, this does not excuse making time to clarify - specifically - what you want to accompli ..read more

Maximizing Efficiency and Effectiveness in Dispute Resolution Mediation is often known as the creative, more fluid option along the dispute resolution spectrum. Where arbitration is guided by rules, the mediation process is generally open for the parties and mediator to design on a case by case basis. In arbitration, we are guided by process goals of protecting the fairness, efficiency and economy of the proceedings. While these are also important precepts in mediation, mediation also allows for a bit more creativity when it comes to process design. As such, project management tools are an id ..read more

There are a number of decisions parties can make to encourage efficiency in arbitration. Selecting the best arbitrator, or tribunal, for the case is one of the most impactful of these decisions. But how is that decision made? Sometimes, by flip of a coin.* Other times, by word-of-mouth recommendations or dictated by the who-you-know process. Historically, selecting arbitrators has been a rather opaque endeavor. Today, there are a myriad of resources that parties can consult to assist in the arbitrator selection process. For additional details on research processes that help identify qualified ..read more

Introduction One of the greatest benefits of arbitration is parties’ ability to consider who will serve as the decisionmaker. However, when an arbitration clause specifies that a panel of three arbitrators will hear disputes, the process often requires that each party select their own panelist (party-appointed arbitrator or wing arbitrator). Subsequently, it is the two party-appointed arbitrators who must agree on appointment of the third arbitrator to chair the proceedings (chair or president). Recently, the New York State Bar Association posed a question on its blog: How should the chairpers ..read more

It is a truly exciting time for the world of dispute resolution, in which video-conferencing technology and the emergence of sharpened procedural tools – among other factors – have greatly increased the potential for achieving efficiency in arbitration and mediation. Within this context, in ,my last post, I shared advice for parties and arbitrators wishing to deploy increasingly feasible cost- and time- saving strategies, without sacrificing due process or the enforceability of their awards. As a follow-up, this piece explores one of the factors making increased efficiencies possible: arbitra ..read more