Fourth Circuit Considers Arbitration Waiver, Permitting Claims under Servicemembers Civil Relief Act (SCRA) to be Arbitrated
by Andrew Flake
A new Fourth Circuit opinion reminds us of the analysis required when parties arguing that federal statutory claims should be excluded from arbitration. In Espin v. Citibank, N.A., returning military personnel brought claims under the Servicemembers Civil Relief Act (SCRA), a statute providing credit-related...
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...
Dealing with Impediments to Settlement: The Challenging Concept of “Fairness”
by Andrew Flake
In a well-known psychology experiment, each member of a group receives some amount of money, say $100, that they can keep on the following condition: They must offer some amount, from $1 to $100, to a partner, and the partner receiving the offer must...
Looking forward, looking back: A 2024 Arbitration Roundup
by Andrew Flake
With a 100th birthday coming up for the Federal Arbitration Act, 2025 promises to be eventful year in the arbitration world! But 2024 held its own, and having just crested the New Year, we should pause to look back at a handful of key...
The Spirit of Camp David: Mediation Lessons from a Former President
by Andrew Flake
Remembering President Jimmy Carter on this national day of mourning, my thoughts turn to the historical achievement of the 1978 Camp David Accords. For nearly two weeks at Maryland's Camp David, President Carter, Egypt's President Anwar Sadat, and Israel's Prime Minister Menachem Begin,...
The Skills of Civil Discourse: What Mediators Have to Share This Thanksgiving
by Andrew Flake
Earlier this month, I had the privilege of joining colleagues at Atlanta's Carter Center to moderate a program on "Peacekeeping and Conflict Resolution." Sponsored by our Atlanta International Arbitration Society, it featured a discussion by scholar Paul Root Wolpe, Ph.D., who has...
Notes from Berlin: U.S. Hospitality in International Arbitration
by Andrew Flake
I had the opportunity to join colleagues last week at the excellent Berlin Dispute Resolution Days, an annual week of dispute-resolution programming put on by the German Ministry of Justice and the German Arbitration Institute (DIS).
I was...
Georgia Court of Appeals Takes a Pass on “Functus Officio” as State Common Law
by Andrew Flake
A neighbor of mine, who loves to cook, recently showed me what looked like a small handheld blowtorch. He clicked a trigger, firing up a flame like a tiny jet engine, and proudly sharing that he could now melt and caramelize sugar, in order...
Safely Navigating Blind Spots in Litigation: Using Powerful Questions
by Andrew Flake
Over the past few weeks, I've been giving up a large measure of control, embracing the process of change in a fluid, highly-unpredictable, and high-stakes environment: Yes, I've been teaching my teenager to drive. And one of the first scenarios we went through was...
Mediation Math — The Power of Combinations
by Andrew Flake
As mediators, we often find ourselves at the intersection of complex disputes and seemingly irreconcilable positions. But what if I told you that one of the keys to unlocking creative settlements lies in a simple middle school math concept – combinations? Both of my...