The Perils of Proceeding with Unilateral Arbitration: Eleventh Circuit Affirms Vacatur of $3.5 Million Award on Appointment-Related Grounds
by Andrew Flake
Party autonomy in arbitration extends, as a foundational principle, from the beginning to the end of the arbitration process. We have the arbitration clause that gives rise to the arbitration, and we have the tribunal’s award, limned by exactly what the parties have agreed...
Generative AI and the Promise of Wider Online Dispute Resolution
by Andrew Flake
Since I took a first look ChatGPT in November 2022, the world of generative AI, in the area of litigation and ADR as elsewhere, has been on a remarkable journey. Recognizing the transformative nature of...
More Than One Way to Loosen the Knot: The Power of Options in Mediation
by Andrew Flake
I have blinds on my office window and one morning not long ago, I noticed a knot, really a tangle, that seemed much larger than I remembered. I decided to untie it, and after a painstaking length of...
The Forest and the Trees: Drafting The Optimal Arbitration Clause
by Andrew Flake
I participated recently in a discussion on alternative dispute resolution in IP disputes -- mediating and arbitrating trademark and patent infringement cases, and particular challenges that can arise. One of the topics we took up, which...
The View from Overhead: Garage Doors, Trademark, and Crafting Our Settlements, Part II
by Andrew Flake
An expensive piece of business litigation, particularly in the IP world and with companies interacting on an ongoing basis, always provides us some useful reflection. In our last post, we looked at a protracted piece of...
Moving the Conversation Forward: Early Mediation and EDR
by Andrew Flake
We take for granted that mediation is an available option for our cases. Mediation, at least the concept of a trained neutral retained to work with the parties to bridge differences and resolve disputes outside of litigation, is...
The Hourglass and the Ocean: Making Time for Resolution
by Andrew Flake
In the litigation practice, we deal in time. Schedules, deadlines, fees and invoicing -- they are all ways to divide and parcel out a scarce resource. I have an hourglass in my office I received as a...
Cards, Cookies, and the Supreme Court’s Coinbase v. Bielski Opinion: Mandatory Stay Now Required on Appeal of Denied Motion to Compel
by Andrew Flake
Summer is beach season, and when my family travels, we'll usually bring a few decks of cards with us. When my children were younger, that meant we played a lot of "War." You know the game --...
The Best Time to Plant A Tree: Litigation Prevention and the Contract
by Andrew Flake
You may have heard the proverb along that the best time to plant a tree "is 20 years ago." It makes us pause and consider that in so many instances, we're taking small actions today with benefits...
Changing the House Odds: Certainty and the Mediation Process
by Andrew Flake
I was in Las Vegas last week, at Caesar's Palace, for a meeting of the ABA's Dispute Resolution section, an annual gathering of mediators, arbitrators, and other dispute-resolution professionals to compare notes on best practices and to take...