Appellate Advocacy in the Zoom Era
by Andrew Flake
What has changed, in this time of virtual cat-filters and huge daily dollops of professional screen time, about good appellate advocacy? Instead of standing behind a podium, in a quiet and majestic appellate courtroom, ...
Assessing and Correcting for Implicit Bias
by Andrew Flake
Especially in recent months, ADR practitioners, as professional problem-solvers who constantly evaluate and decide business and legal questions, have been examining a phenomenon that impacts all of us: implicit bias. We have been thinking about it,...
“And If You Didn’t Hear Us the Last Time”: More Emphasis on Arbitral Award Finality
by Andrew Flake
A just-issued Georgia Court of Appeals opinion underscores a message the state's appellate courts have been sending for some time: Arbitration awards are not subject to automatic appeal. They are supposed to be, and are presumed...
Location, Location, Location: Forum-Selection in International Litigation
by Andrew Flake
I once spent a week arbitrating a technology dispute in Helsinki, Finland, walking through the city center to our hearing each day in gusting snow. We were there because the parties' contract specified a Finnish seat,...
Phased ADR Clauses, Redux
by Andrew Flake
Having discussed phased dispute resolution, a process in our contracts that moves from more informal modes of discussion to binding ones, like arbitration, let's add some caveats. These provisions are not off-the-rack suits, to be draped...
Human Nature and Mediation: A Focused Review of “The Psychology of Money”
by Andrew Flake
I always appreciate a good book recommendation, and received one the other week in The Psychology of Money: Timeless lessons on wealth, greed, and happiness. In a compact format, author Morgan Housel, a...
If Honeybees Could Mediate: Benefits of Phased Dispute Resolution
by Andrew Flake
I took a field trip last weekend, visiting the gardens of a friend and experienced beekeeper. During a tour of the grounds, I watched in fascination as she tended to honeybees in the hundreds of...
Delivering a Compelling Closing in the Complex Business Dispute
by Andrew Flake
In complex litigation, we are continually distilling the simple from the complex, assessing multiple and often nuanced legal arguments, assessing hundreds of exhibits, sifting through the details of company work. With...
The Halliburton Decision, Part II: Considering the Contours of Arbitrator Disclosure
by Andrew Flake
In a prior post, we looked at the lead up to the U.K. Supreme Court's Halliburton opinion, an important decision that enters the thicket of disclosure practices, and emerges having cleared an open path....
Dotting the i’s (and Sealing the Envelope) In Arbitration-Award Challenges
by Andrew Flake
The Federal Arbitration Act is oriented toward encouraging arbitration and upholding arbitral awards. And just as the substantive bases to challenge an award are narrow, so too are the procedural...