Making the Most of Our Online Mediations
by Andrew Flake
After a nearly ten-hour day on Zoom, even after concluding a great settlement, we're sometimes less than celebratory. The process can be intense, consuming a lot of focus and energy. It leaves us pretty exhausted....
Groundhog Day Edition: Considering the Mediation Privilege
by Andrew Flake
When that oddest of special occasions rolled around this year, our U.S. Groundhog Day, I decided to incorporate the festivities into a post. What are some of the recurring issues are in mediation, things that...
Arbitration Update: Another Effort to Exorcise “Manifest Disregard”
by Andrew Flake
One of the classic conventions of the scary movie is a villain or monster's "last gasp," a frightening reappearance after what should have been an antagonist's definitive end. In the arbitration context, we have such...
Two Chief Justices, and Why Institutional Independence Matters
by Andrew Flake
Every year, Chief Justice John Roberts prepares a report on the state of the judiciary, frequently with interesting reference to American history. This year, his thematic focus was judicial independence, a topic for which he selected former U.S. President and...
Mediation and the Psychology of Money, Part II
by Andrew Flake
In a prior post, I reviewed a compact and very readable book from Wall Street Journal columnist Morgan Housel, whose thesis, supported by colorful...
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,...
Mediation Principles for our National Conversation
Much of President Biden's inaugural address sounded historically resonant American themes of unity across differences. As I watched, I thought about the work ahead for not only Congress, but all of us. In attempting to forge consensus around policy and legislative solutions--to move...
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...
Maintaining Confidentiality in Arbitration
We often hear that arbitration affords a level of confidentiality that courtroom proceedings do not. While that is true to an extent, it requires some qualification: It is the parties who must, by agreement or request to...