Category Archives: Alternative Dispute Resolution

The Present and Future of ADR

Posted on by Chris Poole

At the recent ABA Dispute Resolution Section conference in Chicago a panel that included myself, Debbie Masucci, past president of the DR section; India Johnson, CEO of AAA; and Dale Matschullat of Schiff Hardin, discussed “The present and Future of ADR.” The primary topics included the financial crisis in the courts, international ADR, online dispute resolution and diversity in ADR.

The budget cuts to the court system have perhaps been felt more severely in California. In March, California Chief Justice Tani Cantil-Sakauye lamented in a speech to the state legislature, “our judicial branch budget has been cut greater and deeper than any other court in the United States.” The roughly $1 billion in reductions have led to closure of a large percentage of civil courtrooms. The impact on ADR, however is less clear. The panel generally felt that the desire for swift justice would increase the demand for mediation and arbitration, but that hasn’t always been the case.

On the international front, there is a similarly mixed message. Changes like the 2007 Mediation Directive passed by the European Union have had little impact on the demand for ADR in Europe. In other parts of the world, arbitration has seen slow but steady growth, while mediation has yet to become a significant part of the ADR process.  Brazil was cited by the panel as a prime example of a rapidly expanding economy with an active and growing litigation market, but a lack of interest in commercial mediation.

Online dispute resolution (ODR) has become a hot topic in ADR. A number of ADR providers are exploring piloting online offerings. Although the panel was clear on the inevitable growth in ODR, interest and momentum is more apparent in smaller commercial disputes where human facilitators are often not involved.  The panel also felt that the use of ODR in more complex disputes will become more common as technologies and offerings improve.

The panel concluded with a robust discussion of diversity in ADR, highlighted by a recognition that the ADR industry reflects the same challenges as most law firms where women and minorities represent a small percentage of equity partners. JAMS, for example, recruits its neutrals primarily from the judiciary, but also from the senior ranks of law firms where the vast majority of partners are white males.  ADR providers have focused diversity programs in place, but are struggling to achieve as much progress on the demand side of the equation, where women and minority neutrals are not chosen proportionately to their population in those organizations.

We found it difficult to draw any single conclusion about the future of ADR. However, the message of slow, steady growth stood out as well as the need for ADR organizations to innovate in terms of efficiency, cost effectiveness and flexibility to adapt to changes driven by a more sophisticated clientele and an anemic domestic economy.

Information Friday: Some News to End Your Week

Posted on by Chris Poole

Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!

Lawsuit over recalled hip implants headed for mediation

Can Mediation Improve EEOC Conciliation?

El Paso Appeals Court Refuses to Compel Arbitration Where Employee Cannot Read English

Retired judge to mediate battle between Arlington Park and Illinois Thoroughbred Horsemen’s Association

JAMS Heads to Chicago for the ABA DR Section 15th Annual Spring Conference

Posted on by Chris Poole

JAMS is proud to participate in and sponsor the 15th annual ABA Dispute Resolution Section Spring conference starting April 3 in Chicago. The conference is the meeting place for dispute resolution leaders, mediators, arbitrators, neutral providers and scholars. Presenters and attendees have diverse backgrounds including academics, advocates, court administrators, corporate users, as well as dispute resolvers. Many of our neutrals and members of senior management will join panel discussions and lead presentations. Participating panelists include Mercedes Armas Bach, Richard Chernick, Esq., Linda DeBene, Esq., William E. Hartgering, Esq., Marvin E. Johnson, Esq., Harvey J. Kirsh, Esq., Hon. Richard A. Levie (Ret.), Michael K. Lewis, Esq., Barbara A. Reeves Neal, Esq., Hon. Richard E. Neville (Ret.), Hon. Julia M. Nowicki (Ret.), Juan Ramirez, Jr., R. Wayne Thorpe, Esq., Hon. Ricardo M. Urbina (Ret.).

Following are just some of the conference session highlights. Please visit the JAMS Events Page for more information about JAMS presenters and their sessions.

  • Arbitration Ethics: Practical (and Ethical) Solutions to Real Problems
    This program features three experts who deal with ethical issues on a day to day basis for three major arbitration organizations, AAA, CPR and JAMS, who will discuss the ethical, and practical, guidelines they use to navigate successfully through these issues to solutions.

    • Sheri Eisner, JAMS
    • Eric Tuchmann, American Arbitration Association
    • Helena Erickson, CPR
  • The Present and Future of ADR 
    This moderated panel will discuss developments and trends in domestic and international ADR. Leaders in dispute resolution including the American Arbitration Association and JAMS will discuss the topics and themes around what is happening today in dispute resolution.

    • Deborah Masucci, Chartis
    • India Johnson, American Arbitration Association
    • Chris Poole, JAMS
  • Mediator Ethical Guidance Committee Update 
    Members of the Mediator Ethical Guidance Committee will present various scenarios that have been considered by the Committee, and the process by which the scenarios are evaluated and opinions issued. We will discuss the kinds of topics that come before the Committee in prior scenarios and more recent issues of interest in the mediation community, presented in a Q&A format. 

    • Kimberly Taylor, JAMS
  • International Committee Workshop: A Window into the Future: Adding Mediation to the Process Choices in Global Investment Disputes
    Much of the discussion will be dedicated to the theme of investment treaty arbitration: why and how mediation could be integrated into such processes. 

    • Lorraine Brennan, JAMS International Managing Director
    • Jeremy Lack, JAMS International panelist

 

Mediation Matters in IP Matters

Posted on by Jim McGuire, Esq.
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James McGuire, Esq.

James E. McGuire, Esq., a JAMS neutral in Boston, has extensive experience in all aspects of ADR including mediation and arbitration, as well as serving as a special master and neutral evaluator. He can be reached at jmcguire@jamsadr.com.

Effective March 2013, the United States joined most other countries to provide patent priority to the first inventor to file, rather than the first to invent. This is the latest change to U.S. patent law created by the Leahy-Smith America Invents Act (AIA). The impact of the first-to-file rule on private resolution of disputes through mediation is likely to be minimal since most patent disputes do not turn on the priority of competing claims for the same invention. Other changes created by the AIA, notably the ability to terminate post-grant review procedures by settlement, will make mediation matter even more in resolving patent disputes.

The AIA became law in 2011 as the first major overhaul of the U.S. patent system in more than 50 years. The general goals of the AIA are to make the patent process more efficient, more transparent and to allow greater public participation in the process so that good applications result in strong patents and weak claims are weeded out.

The primary advantage of mediation is to avoid the costs and risks of litigation. A secondary advantage is the ability to tailor the resolution of the dispute to meet the true interests of the parties. The range of possible solutions is far broader than the remedies available through a court in litigation. These concepts apply with equal force to IP disputes.

Frequently, mediation is used early in the resolution process for copyright, trademark and trade secret disputes with great success: three out of four settle at or soon after the mediation. Most patent cases are resolved without a trial, but patent cases tend to stay in the legal system longer and accordingly consume more corporate and legal resources. Though some courts require early mediation of patent cases (before claim construction), in many cases the mediation occurs later in the litigation process. Experienced mediators recommend early use of mediation and encourage participants to think of mediation as a process to help parties narrow the range of disputes and streamline the conflict management process even if some disputes will still require the expertise of the Patent Trademark Office (PTO) or the assistance of the federal courts.

Flexibility in the mediation process helps the parties settle claims that do not require the assistance of the PTO or the courts. The ability to terminate post-issuance challenges adds to that flexibility. Consider using mediation early for maximum control and effectiveness.