When Does Documents-Only Arbitration Make Sense?
An underutilized dispute resolution process in U.S. commercial disputes is an arbitration conducted only on the exhibits, without a final oral hearing. Such a documents-only arbitral process, much more common internationally, resembles a summary judgment process more than it does a...
Repeat Player Bias in Arbitration: Snuffleupagus or Yeti?
The topic of arbitrator bias came up recently in two completely different settings -- one, a presentation by a law professor to a group of lawyers, and one, in a conversation with a non-lawyer friend, a scientist. In both...
Federal Court Hearings and Chill? Applause for More Live Streaming
The federal courts' policymaking body, the Judicial Conference of the United States, has just kicked off a pilot program in selected district courts to livestream the audio of certain court proceedings. Despite the concern expressed by some that a...
ROSS-Westlaw Copyright Feud: Approaches to Litigation Cost Management
What options does a smaller defendant have when a larger and better-funded competitor uses litigation as a means to exert financial pressure and drain resources? This scenario is one that legal AI company ROSS Intelligence, as a result of copyright litigation filed by...
Phoning It In: Telephonic Mediation in a Virtual World
A litigator friend of mine recently shared her frustration over being forced to mediate a case by phone. The mediation was being set up by a government agency, and the agency representative in question was not...
Uniform Mediation Act Still Trekking Through the States
The steadily rising costs of litigation, and the current backlog on civil dockets, have borne out what one of the most effective American trial lawyers of an earlier generation observed: that in...
A Promising Future for the Singapore Convention and Global Mediation
I was talking with a colleague from Australian recently, a barrister and frequent mediator, about what the coming years will bring for international dispute resolution, and for mediation in particular. We agreed that in more jurisdictions across the world, mediation will continue to gain wider...
How COVID-Era Technology is Driving Down the Litigation Cost Curve
In order to move cases forward during the pandemic, we have accelerated technology deployment in litigation, setting up major new efficiencies for litigants. These technologies were there in some form prior to today. But widespread acceptance was missing: in...
The Power of Theme: Epic Games Takes Aim at Apple
The lawsuit by Epic Games against Apple, challenging Apple’s strict controls on developers and the App Store’s percentage take from game revenue, shows the power of theme and coordinated message. When I read the first news accounts of the filing, they all referenced Apple’s market...
Second Circuit Reaffirms Its View on Section 1782 and Private International Arbitration
Sharpening a split with sister circuits, the Second Circuit has now affirmed its position that private arbitral bodies are not "tribunals" under 28 U.S.C. § 1782. For the time being, then, if your dispute is in international arbitration administered by an entity...