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...
Is Arbitration “Just Like” Litigation? Some Challenges to Conventional Wisdom
by Andrew Flake
I will occasionally hear, including from some very seasoned litigators and trial lawyers, that arbitration is “just like” litigation. Is that really true? I suppose, In the sense that they are both proceedings that...
Stops along the Way: When the Mediation Discussion Makes Sense
by Andrew Flake
More than ever, with case dockets overloaded, our trial judges welcome counsel's willingness to mediate. Indeed, much more frequently, I see them ordering parties to mediate, and doing so earlier in the litigation process, as part...
Abogados and Avocados: Section 1782 Nets Early Access to Corporate Records in Mexican Litigation
by Andrew Flake
Reminding us of why 28 U.S.C. Section 1782 matters in cross-border litigation, the Eleventh Circuit in a just-published decision affirmed the validity of subpoenas directed at a U.S. company for records, not of the U.S. company, but of...
11th Circuit Uses Trademark Case to Instruct on Summary Judgment Practice
by Andrew Flake
In a trademark case decided just this month, FCOA, LLC v. Foremost Title & Escrow Services LLC, the Eleventh Circuit considered when a case should be decided without a trial, looking at the special case in which...
Chat GPT and Litigation Technology, Reprised
by Andrew Flake
When I considered ChatGPT in last week's post, musing about how disruptive this next generation of AI might be for the world of litigation and dispute resolution, I may have understated the...
2023: The Arrival of Hands-On AI
by Andrew Flake
You may have read that, at the close of the year, artificial intelligence (AI) hit the mainstream. Open AI released a tool, ChatGPT, with some remarkable capabilities. Among other things, it can generate poetry, essays,...
Utilizing the Special Master
by Andrew Flake
We've read recently, in the highly-charged political context of a dispute between the national records administration and the former president, of the role a special master has played. Because how the court-appointed experts fit into litigation is...
Early Dispute Resolution (EDR): A Recipe for Success in Commercial Mediation
by Andrew Flake
When it comes to our favorite dishes, while we may not ourselves be chefs, most of us can at least name the key ingredients. A great sirloin is cut just so, perhaps seasoned with salt and pepper...
An Idea Whose Time Has Come? Considering the Role of Settlement Counsel
by Andrew Flake
Invited to an extended family reunion, I visited one of our state parks a few weekends ago. It was a cool and beautiful morning, and for a moment, standing under a bright blue fall sky, taking in the...