Tag: Alternative Dispute Resolution

Important Considerations for Mediation

“You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.” – Mick Jagger and Keith Richards

Successful Mediation. Unlike the regular adjudication of a legal dispute, in mediation there is no “decision-maker” to determine who is “right” or “wrong.” No final order or judgment is issued. Instead, a good mediation will result in a resolution created by both parties that satisfy both parties’ interests or concerns. Mediators are not looking to find fault or assign blame – rather, a mediator works with the parties to problem solve and find creative solutions and proposals.

Selecting a Mediator. In some court programs there is a list of “pre-approved” mediators. The mandatory Alternative Dispute Resolution program in the Western District of Pennsylvania has such a list. In the Allegheny County Court of Common Pleas there will be no such guidance on preferred mediators. Pennsylvania does not have any national or statewide organization that certifies mediators. However, there is training available and basic mediation training is generally a 40-hour course covering problem solving, conflicts, communication skills, ethics and practical skills in role plays and other exercises. Mediators should have attended at least a basic mediation training course as well as have experience in mediating civil cases.

Article By Kathryn L. Clark of Strassburger McKenna Gutnick & Gefsky

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©2022 Strassburger McKenna Gutnick & Gefsky

Why Companies Want Arbitrators Who Have A Public Profile On LinkedIn And The Internet

Recently posted on the National Law Review by Michelle Sherman of Sheppard Mullin Richter & Hampton LLP – some things to think about involving social media and arbitrators: 

Your company has a dispute with a vendor or customer, and the terms of the agreement between the company and the person you are about to sue provide for binding arbitration. It is common for contracts to have arbitration provisions. Arbitration is viewed as less expensive and more expeditious than litigating a dispute in court. Arbitration provisions also allow the parties to agree that consequential (e.g. down time, finance fees, lost profits) and/or punitive damages cannot be awarded. Arbitration also gives the parties more control in deciding who will adjudicate their dispute, rather than having a judge randomly assigned to your case. There are many positives to arbitrating a dispute.

The only real downside that comes to mind is that arbitration awards are extremely difficult to set aside. In California, an arbitration award will stand unless the party challenging the decision can show (1) “the award was procured by corruption, fraud, or other undue means”; (2) “the rights of the party were substantially prejudiced by the misconduct of a neutral arbitrator”; or (3) an arbitrator failed to make a timely disclosure of a conflict which would be a ground for disqualification. Cal. Civ. Proc. Code § 1286.2. The Federal Arbitration Act includes similar limited grounds for vacating an award, with “evident partiality or corruption in the arbitrators, or either of them,” being one ground. 9 U.S.C. § 10.

Consequently, companies assume a significant risk when choosing an arbitrator to decide their dispute. Arbitrators also charge rates ranging from $350 – $625 per hour. It behooves the company and its counsel to research the prospective arbitrators before settling on one or a panel of arbitrators. Before the Internet, legal counsel would rely on word of mouth, and seek input from attorneys at their firm. With the Internet and the professional networking site, LinkedIn, there is much more information available.

On LinkedIn, for example, the potential arbitrators can make their connections available to anyone who is connected to them, which is easy enough to do by accepting a request to connect. This is one way to disclose if they are affiliated with anyone who is a party, witness, or interested party in the action. And, it is an easy way to invite questions if anyone is concerned about a connection, which will not be a problem in most instances. Being “connected” on LinkedIn does not necessarily mean there is a relationship that would “cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial…” Cal. Civ. Proc. Code § 1281.9(a). It is also worth looking at what LinkedIn groups the prospective arbitrators have joined to see if there is anything that would indicate a potential bias in your case. LinkedIn profiles usually include the employment history of the person, and also websites if they have one.

Information from the Internet has resulted in one judge disqualifying himself when it became public. In the Ninth Circuit, a judge was in the middle of an obscenity trial when the Los Angeles Times broke a story that the judge had an extensive collection of suggestive or explicit images and videos on his personal computer server. It turned out that the server was connected to the Internet, and, through that connection, the images on his personal website had become publicly available. The judge, the Honorable Alex Kozinski, disqualified himself from hearing the obscenity case. Judge Kozinski also declared a mistrial in the case. The newspaper story had raised a suspicion that the court could be biased in favor of the defendants.

In another case, a motion to vacate an arbitration award was granted because the arbitrator Sean SeLegue did not disclose that his legal practice centered on representing law firms in disputes with their clients, and that he was currently involved in representing a law firm in a fee dispute with it former client. Benjamin, Weill & Mazer v. Kors. The perceived conflict could have been avoided if the arbitrator had disclosed the case. Alternatively, if the party moving to vacate the award had done her due diligence, she would have found numerous Google hits showing the nature of the arbitrator’s practice, including his profile on his law firm’s website, and his membership in the Association of Discipline Defense Counsel, an organization that describes itself as the “bar association for lawyers who represent lawyers and others in disciplinary, admissions and regulatory proceedings before the State Bar of California and the California Supreme Court.” Since Kors was in a fee dispute with her prior counsel, she would have probably asked SeLegue to withdraw as one of three arbitrators if she had known about his potential conflicts. A motion for rehearing has been granted in this case, so the case cannot be cited.

At a February 2011 conference for arbitrators in Los Angeles, one speaker reportedly told his audience that arbitrators should avoid social networking sites altogether, including LinkedIn because of the risk of perceived conflicts. This advice is misguided and shortsighted. The problem does not rest in having a presence on LinkedIn or the Internet. In fact, this may be one of the best ways for professionals to make themselves known and visible. This is especially true in fields where there is lots of competition, and a wide range of choices. It is unreasonable and unfair to discourage arbitrators, who are drawn from retired judges, law professors, litigators and trial attorneys, from having websites, participating in LinkedIn groups, or taking advantage of the resources on the Internet to market themselves. Also, information on the Internet benefits parties who are trying to find the most suitable arbitrator(s) for their dispute.

The better wisdom is for arbitrators to immediately disclose to parties who are considering their services where they appear on the Internet (websites, professional associations, blog articles), and invite the parties upfront to connect if they want to see a list of their LinkedIn connections.

When choosing an arbitrator, remember the Internet and LinkedIn are wonderful resources that can possibly provide more information than word of mouth, and second hand information. The upside is possibly avoiding an arbitration award that will be binding and final, if a better “neutral” had been selected with a little investment of time and knowledge of the Internet.

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.

 

 

Alternatives to International Criminal Justice – Restorative Justice and Peace Through Peaceful Means

The National Law Review would like to congratulate Heejung Park of Washington University in St. Louis as one of our Fall 2010 Law Student Legal Writing Contest Winners! 

“Out of timber so crooked as that from which man is made nothing entirely straight can be carved.” -Immanuel Kant-

Individuals live their own lives, and have their own goals.  An entity may be an individual, a group, or a nation.  The purposes of two parties may be in harmony with each other and without conflict, or may not.  Such purposes may be good, or evil.  Essentially, problems occur when the purposes of two or more parties do not coincide.  The basic position of the traditional criminal justice system is to address problems simply by punishing the perpetrators.  However, over the last several decades, there have been new studies in the area of peace and human rights, and in this environment, new institutions may be welcome.  This is inspiring changes from the perspective of human integrity and the right to peace, which pursues harmonious coexistence.

If the criminal justice system, which aims to punish perpetrators, takes an interest in the perpetrators as well as the victims by enabling the perpetrators to truly repent for their offenses and voluntarily make restitution to their victims, while allowing the victims to accept the restitution based on a principle of forgiveness and tolerance, a foundation for peace and respect of others in the community will be formed. As such, it is very significant to prepare for a system wherein the pepetrator and the victim can remediatetheir hurt,and recover.  If we are working from a principle that values life above all, and values human rights to the extent that they carry more weight than the earth itself, such an approach must be inspiring.  It is not that easy to buildasociety that is better and more peaceful, in which everyone can live together harmoniously.  When criminals are punished, this does not mean that everything has been resolved.  Often,the root causesof a crime can be foundin the community, or even in the victim himself or herself.  On this basis, victims and communities also have a responsibility to take an interest in the perpetrators of crimes.  The intent must be to identify the fundamental causes of crimes, and by addressing these causes, to create a better society and a better country, byseeking an alternative to the international criminal justice system based on peaceful means.

To achieve this, one or more of the following three approaches may be effective.  The first is to constitute a truth commission to pursue truth and reconciliation. This approach has been successful in South Africa, as well as in some Latin American and Asian countries.  Truth will be identified, and reconciliation will be made based on investigations into violations of human rights and provisions concerning ethical and legal responsibilities and duties.  The Report of the Truth and Reconciliation Commission that was prepared by the government of South Africa in 2003 also addressed this issue.  Through the Truth and Reconciliation Commission, violations of human rights relating to apartheid have been addressed.[i] The second is to hold public inquiries.  This is closely related to post-conflict management.  “Bloody Sunday[ii]” in the UK is a representative sample.  In this event, 13 people were shot to death and several were injured on January 30, 1972, a Sunday. A high-profile public inquiry, it was led by English Supreme Court Justice Mark Saville together with a judge from New Zealand and a judge from Canada, and was established on April 3, 1998.  The last is “Community-based Restorative Justice”, which is the most important and is addressed intensively herein.  This is a mechanism that focuses on the post-conflict environment, and is deeply related to the peaceful coexistence of a community.  In this area, new justice systems have emerged, called “gacaca” and restorative justice.[iii]  Gacaca is a new court system that was launched by the Rwandese government on June 18, 2002.  This new court system follows the customary system for community hearings, which have been used whenever a conflict occurs in the community.  Begun at a Canadian church in the 1970s, restorative justice is a crime-fighting approach for victim-sensitive victim-offender mediation.

Criminal prosecution is not always the right solution.  It is a good method only when it can benefit society and nation.  If we acknowledge that unexpected pitfalls exist for everyone, then people should be given one more chance, even if they have committed a crime. The proposition of the “restoration of offenders” is not suitable for all conflicts.  Nonetheless, it is a new approach to consensus, and aims at facilitating mutual understanding.  The Bible features an approach similar to this restorative justice.[iv]  It also refers to accountability for healing that goes through discipline to move toward a peaceful environment, which is different from the existing criminal justice system.[v]   The Bible considers every individual a sinner.  It says that an individual can receive forgiveness when he/she sincerely repents, surrenders to God, and produces the fruit of repentance.[vi]  It further says that reconciliation will take place when one makes restitution and reparation for the harm, and this action bears fruit.[vii]  When this is done, the offender is able to commit himself/herself to the community and the nation by producing the fruit of the Spirit[viii], through his/her indebtedness and freedom from being forgiven. Curing offenders, allowing them to repent for their wrongdoings and to voluntarily make restitution and reparation, a win-win situation for perpetrator and victim, is possible in the love of God through the remediation of hurt, restoration, forgiveness, and tolerance.  Through this, the community can seek peace through social justice and tolerance.  Both perpetrators and victims have fundamental rights as human beings.  In this area, the roles of national reconciliation/mediation agencies, protection agencies, and NGOs are important.

These approaches may equally be applied to international criminal justice.  As demonstrated above, post-conflict management should be approached peacefully.   Disputes occur when the purposes of parties do not coincide with each other. This discord emerges in the form of conflict.  A conflict is a polarization of opinions or powers.  Ultimately, such polarization may reach the level of violence, which leaves residual trauma.  This process repeats itself, continuously.  The ring of this vicious circle should be peacefully severed.  Such an approach to peaceful means advocates solving problems through mediation (this is directed toward the future, and it is better than “victory”) at the stage of conflict; through the positive involvement of peace-building at the stage of polarization; and through nonviolence rather than violence, and reconciliation and conciliation (which is against the past, and requires healing) instead of trauma.

[i]Mark Freeman, Truth Commissions and Procedural Fairness, Part 1:‘Introduction’ 3 (Cambridge University Press, 2007).

[ii]Angela Hegarty, “Truth, Law and Official Denial: The Case of Bloody Sunday”15Criminal Law Forum 199 (2004).

[iii]Phil Clark, “Hybridity, Holism and ‘Traditional’ Justice: The Case of the Gacaca Community Courts in Post- Genocide Rwanda”, 39 Geroge Washinton International Law Review 4 20 (2007).

[iv]Tony F. Marshall, Restorative Justice An Overview 6 (Research Development and Statistics, 1998).

[v]Edward Bouverie Pusey, The Confessions Of Saint Augustine 5-6 (Kessinger Publishing, 2004).

[vi]Matthew, New International Version Bible,The New Testament: Matthew 2 (Word Of Life Press, 2009).

[vii]Jeremiah, New International Version Bible, The Old Testament: Jeremiah 706 (Word Of Life Press, 2009).

[viii]Paul, New International Version Bible, The New Testament: Galatians 185 (Word Of Life Press, 2009).

© Copyright 2010 Heejung Park