Georgia State Legislature Passes Arbitration Bill

Posted on March 30, 2012 by Chris Poole

The Georgia State Congress recently passed a new arbitration bill, which aims to enhance the state’s reputation as a neutral location for commercial arbitration. The bill already has passed the Senate and will head to Gov. Nathan Deal to sign into law.

Once the bill is enacted it would bring a number of changes to the Georgia International Commercial Arbitration Code and move the framework in line with international standards. According to supporters of the bill, the standards are based on UNCITRAL (United Nations Commission on International Trade Law), considered the global standard for international trade law, but they also go a step beyond that.

In particular, the legislation will more clearly define the application procedures for commercial arbitration; the process by which arbitral tribunal members are selected and disqualified; the scope and style of interim relief provisions; the process for recourse against an arbitral award; and the procedures for recognition and enforcement of arbitral awards.

In the state’s ongoing effort to continue promoting itself as an arbitration hub, it will host an international arbitration conference in Atlanta from April 15 through 17.

JAMS Panelists Michael K. Lewis, Esq. and Linda R. Singer, Esq. Receive Prestigious ADR Award

Posted on March 29, 2012 by Chris Poole

Michael Lewis and Linda Singer

On April 20, JAMS panelists Michael K. Lewis and Linda R. Singer will receive the D’Alemberte-Raven Award from the American Bar Association. This prestigious award recognizes outstanding service in the dispute resolution field, honoring individuals who have developed innovative programs and have improved dispute resolution services and efficiency. Past recipients of the award include JAMS Founder Hon. Warren Knight (Ret.), former Attorney General Janet Reno and Ambassador Richard Holbrooke.

A graduate of Harvard College and George Washington University School of Law, Singer has more than 30 years of dispute resolution experience as an arbitrator, mediator, civil litigator and neutral evaluator.

Singer pioneered the development of mediation as a practice, training mediators and lawyers throughout the United States and abroad. Attorneys describe her as tenacious, intelligent and possessing an innate ability to settle cases that others could not.

A graduate of Dartmouth College and Georgetown University Law Center and a former Foreign Service Officer, Lewis is known for his ability to resolve the most complex disputes in virtually every area of law including business, public policy, employment, environment and government.

Based in Washington, D.C., Lewis and Singer are also married to each other. Following is a snippet of an interview with the two of them from the upcoming issue of the Dispute Resolution Alert. We’ll be sure to link to the entire article once the issue publishes.

What does it mean to you to receive the 2012 D’Alemberte-Raven Award?

Singer: It’s the most prestigious award in our profession because it comes from our peers, because of our predecessors who’ve received the award and because of the two ABA giants after whom it is named.

Lewis: I’m not sure I’ve absorbed the fact that the section has decided to honor us. Frankly, it was a real stunner. I hope that those who chose us recognized the importance of our early work in the field and the desirability of supporting efforts designed to provide dispute resolution services to the less fortunate among us.

What drew you to the ADR field?

Lewis: It was the sense that there had to be a better way of resolving disputes other than violence, litigation or taking it to the streets. In the early 1970’s, mediation especially was not used widely other than in labor disputes.

Singer: We both got taken with the notion of mediation and of trying to focus parties on what’s most important to them, enabling them to look forward and to repair relationships. We grew with the field – we started with interpersonal disputes and we now handle both huge and smaller disputes.

What kinds of disputes are the most interesting to you?

Singer: I like puzzles with lots of moving pieces. I like the intellectual challenge of multiple parties or of class actions with a lot of different people and issues. Sometimes I’m surprised that the most interesting disputes are less about the subject matter and more about the people and the personalities.

Lewis: I’ve enjoyed disputes involving layers of government and business and ordinary folks all mixed in one big stew. At the end of the day, when you leave with a sense that the mediation has made a difference in someone’s life, it’s an incredible high.

Anything else you’d like to add?

Singer: People sometimes ask us how we, as a married couple, have been able to work together as colleagues for such a long time. We’ve even mediated a couple of very large cases together and it really is a pleasure.

What’s the secret?

Lewis: Adaptability and persistence!

Settlement Agreements: Who Should Sign?

Posted on March 27, 2012 by Robert Luft, Esq.

Robert S. Luft, Esq.

Today’s post comes from JAMS Panelist Robert S. Luft, Esq., a San Jose-based mediator and arbitrator who utilizes 40 years of experience for a fair, optimistic, energetic and patient approach to ADR.

The recent California appellate ruling in Glen Provost v. Regents of the University of California sheds significant light on judicial views of written settlement agreements. In particular, the case dealt with who should sign a settlement agreement and the ruling has significant implications for their enforceability in California, particularly with respect to corporations.

For corporations, whether or not a settlement agreement can be enforced depends on who signs it. A corporation acts through its employees and agents and that raises the question of what employee or agent can bind the entity to Judgment enforcement. This issue was partially answered in the Provost case.

Glenn Provost was a former employee of the University of California who brought a whistleblower suit against coworkers and the University. It drew a cross-complaint for breach of contract and other causes of action. The case settled, but Mr. Provost backed out of the agreement and the University moved to enforce the settlement. One of the plaintiffs’ objections to enforcement was the University had an in-house lawyer and not a party sign the agreement.

In Provost, Carolyn Yee, the in-house counsel for the Regents, signed the agreement as she had been designated as the party representative. She was an employee of the University and designated, according to the court, as an authorized corporate representative. Ms. Yee was not a counsel of record on the complaint. She was a counsel of record on the cross-complaint. The court emphasized that did not disqualify her from signing as a corporate representative. The settlement agreement was upheld as enforceable since it had been signed by the “Party” defendant.

So, how do you ensure the correct person has signed the settlement agreement to make it enforceable?

Some suggestions to consider:

The person should be an employee of the corporation and fully familiar with the case.
The person should be designated in writing as the “authorized corporate [or entity] representative for the litigation.” In Provost that writing appears to have been in the Regent Bylaws, but without Bylaws, I suggest it be a separate document spelling out the authority for the appointment.
The person should not be Counsel of record for the Corporation or entity in the litigation. This eliminates any conflict distinction of Counsel on the complaint or cross-complaint. The Court pointed out being an Attorney alone does not disqualify someone from being a corporate representative.
The person should attend all mediation or settlement conference sessions or have participated in other settlement discussions.

Ultimately, it’s best to err on the side of over qualification of a corporate employee representative to sign a settlement agreement to ensure it will be enforceable in Court. The recent Provost case provides the yardstick for criteria to use in the selection of that employee.

The Ecuador Project: JAMS Foundation & Mediators Beyond Borders

Posted on March 21, 2012 by Chris Poole

Today’s post comes from one of the JAMS Weinstein International Fellows, Ximena Bustamante. Based in Ecuador, Ms. Bustamante is working to develop the field of ADR and train other ADR professionals in her home country. The Weinstein International Fellowship program is an opportunity for fellows from around the world to come to the United States to pursue a project of their own design that serves to advance dispute resolution in their home countries.

Mediators Beyond Borders (MBB) and the JAMS Foundation launched a mediation project in Ecuador, providing tools and resources to support growth and professionalization of ADR. At the same time, this project will offer Ecuadorian and American mediators an opportunity for cross-cultural exchange and mutual learning. With these objectives, the Ecuador Projectwas conceived with three main objectives: 1) an online virtual resource, 2) a series of symposiums, and 3) an outreach component.

The online virtual resource was created in response to the requests from our local partners. Several years ago, the World Bank sponsored a program to create a mediation network community in Ecuador. The network producedgreat momentum and advanced mediation in every corner of the country. However, at the end of the program, the mediation community disappeared along with its achievements. Most of our local partners have called for the resurrection of this type of group. With that in mind, aided by the Saint Thomas University School of Law, we developed an online platform that will reunite the mediation network community.

This technical resource allows the exchange of experiences, techniques, ideas and articles between practitioners, which significantly reduces the expense of being in the same room.Moreover, it will be available in the long term, independent of the projectcompletion. Even further, this tool is bilingual, withthe capability to expand the mediation network beyond these borders, and provide a space for cross-cultural exchange to American and Ecuadorian mediators. Finally, the technical resource will allow our local partners to collaborate in the design of country-relevant symposiums.

The second phase of the project has two objectives. The first is to provide local and international mediators with a space to exchange tools and techniques. The second is to raise the community’s awareness of mediation. As a result, envision hosting a series of symposiums in September in three Ecuadorian cities, Quito, Guayaquil and Cuenca. Initially the symposiums will be directed at mediation practitioners from both countries and will also provide mediationtraining tojudges and members of the judiciary. Finally, the symposiums will also invite the participation of in-house counsel, insurance attorneys and private law firms in an effort to promote the development of the mediation market in each city.

With the results of the symposium, we will develop an outreach component, which will help with the development of peer mediation, unknown in Ecuador, or the training of justices of peace, a legal figure not yet in practice.The mutual exchange promoted by the Ecuador Project will not only bring new techniques to both America and Ecuador, but will also plant the seeds for the professionalization of the field in Ecuador.

March is Mediators Beyond Borders Month at ADRHub.com.