FORUM logo with Tagline


Contract Risk Management: Arbitration and Mediation Should Be Part of the Mix
Contract risk management is essential for protecting organizations during the contracting stage and throughout the lifecycle of an agreement.
Tags: business arbitration, arbitration, mediation
No Do-Overs: Ohio Company can’t revisit arbitration question in a second case
AJZ’s Hauling purchased a Kenworth truck and an associated TruNorth warranty. After AJZ’s experienced several issues with the truck and submitted five repair claims under the warranty, the claims were denied and AJZ’s itself paid to repair the truck.
Tags: business arbitration, arbitration agreement, award enforcement
Using Data And Dispute Analytics To Move From Dispute Resolution to Prevention
Welcome to the beginning of a groundbreaking shift in how businesses approach disputes. Business conflicts have long been seen as inevitable challenges that are addressed reactively, and most often in court litigation. This traditional paradigm, centered on resolution, will soon be overtaken by a more proactive and economically-rational approach: prevention.
Tags: mediation, mediation practice, business arbitration, employment arbitration, franchise arbitration
Misconceptions About Divorce and Family Law Mediation
Pennsylvania family law attorney and mediator Lynelle A. Gleason lays out three fundamental misconceptions about family law mediation in a recent commentary piece.
Tags: mediation, family law
Big Mistake Not To Identify Key Issues In Advance of Mediation
Bradley Arant Boult Cummings Partner and experienced mediator David K. Taylor has continued is occasional series listing and explaining the “Top 10 Horrible, Terrible, No Good Mistakes Lawyers Make in Mediations.” Number 3 on Taylor’s list is the mistake of not identifying key issues in advance.
Tags: mediation, mediation practice
Mediation Design: Knowing When the Standard Approach Won’t Suffice
Experienced mediator Andrew Nadolna describes in the New York Law Journal various specific challenges to reaching settlement and their implications for structuring a potentially productive mediation.
Tags: mediation, mediator techniques
Cognitive Strategies to Move Past Impasse and Achieve Settlements in Mediation
Mediator Rick Weiler argues that impasse in mediation “most often flows from a combination of cognitive biases and flawed risk assessments.” To break an impasse the mediator’s aim should be to break parties out of this disordered thinking and to move the parties from over-optimistic, unconscious and automatic thinking about the dispute and into more active, reflective, and conscious analysis that can encourage problem solving.
Tags: mediation, mediator techniques
The Elements of a Mediation Submission
Former Wisconsin Circuit Court Judge, former United States Attorney, and current active mediator Patrick Fiedler has published a brief article in the Wisconsin Law Journal outlining the major elements that he suggests should be included in a pre-mediation submission document.
Tags: mediation, mediation practice
Open Your Mind: Five Tips for a Successful Mediation
Ingram, Yuzek, Gainen, Carroll & Bertolotti partner Jennifer B. Zourigui published an insightful short piece in the New York Law Journal. She advises, among other items, that attorneys adjust their advocacy approach to focus on mediation objectives and prepare specifically for the mediation. Here are her five tips in a nutshell.
Tags: mediation, mediation practice
District of Kansas Rules That Parties Must Send a Party Representative to Mediation and Not Merely Outside Litigation Counsel
A party who sends only outside litigation counsel to court-ordered mediation and who does not send a party representative can be ordered to pay the opposing party’s attorneys’ fees and costs related to the unsuccessful mediation, according to the U.S. District Court for the District of Kansas.
Tags: mediation, court-ordered ADR
Trust Language Binding Beneficiaries to Mediate or Arbitrate Disputes Is Enforceable in Arkansas
A beneficiary of a trust that contains dispute resolution provisions requiring mediation or arbitration is required to submit trust-related disputes to ADR on equitable estoppel grounds, regardless of the fact that the beneficiary never agreed to abide by the trust’s dispute resolution provisions, according to the Arkansas Court of Appeals.
Tags: non-signatory issues, mediation, state arbitration law, arbitration agreement
Arbitration Award Vacated Due to Arbitration Panel’s Failure to Grant Three-Day Postponement for Attorney’s Medical Emergency
In a memorandum opinion, the Ninth Circuit Court of Appeals held that an arbitration award is subject to vacatur where an arbitration panel “arbitrarily” denies at attorneys reasonable request for a three-day postponement for an undisputed medical emergency.
Tags: award enforcement, federal arbitration act, arbitration procedure
Eight Circuit Holds That Arbitrator’s Undisclosed Ownership Interest in Arbitration Company Constitutes Evident Partiality and Justifies Vacating Award
An arbitration award issued by an arbitrator who does not disclose an ownership stake in the arbitration company administering the arbitration is subject to vacatur under the evident partiality standard where one party to the arbitration is a repeat player who has appeared numerous times in arbitration's administered by the company, according to the Eighth Circuit Court of Appeals.
Tags: award enforcement, federal arbitration act, arbitration procedure
Court Refuses to Enforce Arbitration Agreement Not Signed by Law Firm Where There Was No Evidence That Legal Services Were Provided
A legal representation fee agreement arbitration clause is not enforceable against the client who signed the agreement where the law firm neither counter-signs the agreement, nor provides any other evidence that it intended to be bound by the agreement’s terms, according to the Dallas, Texas Court of Appeals.
Tags: arbitration agreement, state arbitration law, non-signatory issues
Court Awards Sanctions Against Party For Failure to Participate in Court-Ordered Mediation
A party who fails to secure the attendance of a person with settlement authority at a court-ordered mediation, and who fails to listen to the opposing party’s presentation at the mediation, is subject to sanction under Federal Rule of Civil Procedure 16(f), according to the U.S. District Court for the District of Arizona.
Tags: mediation
Non Party With Claims That Do Not Depend Upon Contract Containing The Arbitration Agreement Is Not Obligated To Arbitrate
A non-party to a contract containing an arbitration agreement is not obligated to arbitrate disputes with a party to the contract where the dispute involves only commercial tort claims that do not relate to the terms of the contract, according to the Mississippi Supreme Court.
Tags: arbitration agreement, business arbitration, non-signatory issues
Party Wrongfully Refusing to Pay Mediation Fees Must Also Pay Attorney’s Fees Related to Effort to Collect Mediation Fees
A party who wrongfully refuses to pay mediation fees related to pending litigation in a timely matter may be subject to paying interest on the unpaid amounts as well as the mediation provider’s attorney’s fees related to the effort to collect the unpaid mediation fees.
Tags: mediation
Nevada Law Requiring Specific Authorization to Arbitrate Is Preempted by the Federal Arbitration Act
A state law that requires an arbitration clause to include a “specific authorization” from a person before the arbitration clause can be enforced against that person is preempted by the Federal Arbitration Act’s command that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
Tags: federal arbitration act, state arbitration law
Antitrust Dispute Falls within Scope of Broad Arbitration Agreement Language
An antitrust claim related to product pricing falls within the very broad scope of an arbitration agreement covering any disputes “arising out of or relating to” the distribution contract containing product pricing provisions, according to the Third Circuit Court of Appeals.
Tags: arbitration agreement, state arbitration law
Party Initiating Arbitration Waives Right to Challenge Arbitration Agreement
A party who initiates an arbitration proceeding under an arbitration agreement that the party knows includes an unenforceable provision, waives the right to challenge the enforceability of the arbitration agreement in court by virtue of the fact that the party initiated the arbitration.
Tags: arbitration agreement, award enforcement
California Supreme Court Holds Wage Dispute Arbitration Agreement Unconscionable
The California Supreme Court has held an arbitration agreement binding an employee with an unpaid wage claim unconscionable and unenforceable where the agreement was presented after three years of employment for very brief review, in small print and complex legal language, and to an employee with limited English proficiency, where the agreement also invoked and arbitration procedure that would be less accessible and affordable to the employee than the administrative hearing available under state law.
Tags: employment arbitration, state arbitration law
NLRB Panel Holds Employers Can Require Employees to Sign Arbitration Agreements Even After Class Action Lawsuit Begins
In a recent decision, the NLRB panel in Cordúa Restaurants, Inc., 368 NLRB No. 43 (2019) held that employers can introduce arbitration agreements to employees even in reaction to the fact that employees are in the process of opting into a current FLSA or state wage law collective action lawsuit. The panel also held that employers can notify employees that refusal to sign the updated arbitration agreement will result in termination of employment.
Tags: employment arbitration
Franchise Arbitration Agreement Included in Application Form Is Enforceable Once the Application is Actually Reviewed by the Franchisor
The Second Circuit Court of Appeals held that the arbitration provision in a franchise application submitted to a franchisor becomes an enforceable agreement to arbitrate once the franchisor actually evaluates and reviews the application, even where the language of the application does not include a promise that the application will be reviewed.
Tags: franchise arbitration, arbitration agreement
How Do You Serve An Arbitration Claim Upon Your Opposing Party?
Procedural simplicity and flexibility are hallmarks of arbitration compared to court litigation. When it comes to service of an arbitration demand in a FORUM arbitration, there are several different methods that comply with FORUM’S Codes of Procedure.
Tags: arbitration procedure
Arbitration Agreement Choice of Law Language Does Not Supplant FAA
The First Circuit Court of Appeals held that a general choice of law provision in an arbitration agreement invoking the law of a state does not also operate to insert that state’s arbitration law in place of the Federal Arbitration Act as the procedural body of law governing the arbitration.
Tags: business arbitration, arbitration agreement
Class Action Defendant Waives Right to Arbitrate by Litigating Motion to Dismiss
The Ninth Circuit Court of Appeals held that a party who litigates a key legal issue on the merits in court thereby waives the party’s right to later seek to compel arbitration of the dispute where the litigation activity prejudices the opposing party by forcing that party to incur the costs of litigating the potentially arbitrable issue or claim.
Tags: right to arbitrate
Employee Acknowledging Review of Policy Containing Arbitration Agreement Not Bound to Arbitrate
The Eight Circuit Court of Appeals held that an employee who clicks a button to acknowledge that the employee has reviewed an employee policy document that includes an arbitration clause has not accepted an offer to arbitrate and that no valid agreement to arbitrate is formed as a result of the acknowledgement.
Tags: employment arbitration, arbitration agreement
Major Changes to Pennsylvania Arbitration Law Took Effect on July 1, 2019
Pennsylvania joined 20 other states and Washington, D.C. implementing the Revised Uniform Arbitration Act (RUAA), replacing Pennsylvania’s adoption of the Uniform Arbitration Act, which took place in 1980.
Tags: state arbitration law
Arbitrator Can Award Attorney's Fees Under California Statute Intended to Encourage Settlements
The California Supreme Court held that a party who makes a settlement offer that is rejected by an opponent who later obtains a lesser result in arbitration can request and receive an award of attorney’s fees and costs if such a request is made to the arbitrator within 15 days after the final award is issued.
Tags: arbitrator powers
Court's Rejection of Motion to Compel Arbitration with Specific Administrator Not Subject to Appeal
In a case where the parties elected the specific rules under which an arbitration would be conducted but did not explicitly select an arbitration administrator, the trial court refused to order the parties to arbitrate with the specific administrator that had drafted the rules, and the Eighth Circuit decided that it lacked subject matter jurisdiction over an appeal of that decision.
Tags: right to arbitrate, arbitration agreement
Recent New Jersey Opinions Provide Important Arbitration Agreement Drafting Tips
Robert E. Bartkus recently summarized several arbitration holdings that relate to arbitration agreement drafting and execution on the ABA Section of Litigation’s ADR Committee Practice Points blog.
Tags: arbitration agreement, state arbitration law
Court Reappoints Arbitrator to Issue Final Award to Promote Prompt Resolution of Complex Employment Arbitration
The Eastern District of Missouri held that the same arbitrator should be reappointed and the resisting party compelled to arbitrate in a complex employment case where a partial award and four supplemental awards had been issued and an audit process instituted, but no final award yet issued.
Tags: employment arbitration
Court Rejects Challenge to Language Delegating Arbitration Agreement Validity Question to Arbitrator Instead of Court
The Missouri Supreme Court held that where an arbitration agreement requires that challenges to its validity be decided by the arbitrator instead of a court, this “delegation” provision can be challenged by the party seeking to reject arbitration but that challenge must be specifically targeted at the enforceability of the delegation provision itself and not at the arbitration agreement or the contract containing the arbitration agreement.
Tags: employment arbitration, arbitration agreement
What is a Reasoned Award?
The Fifth Circuit Court of Appeals held that where an arbitration agreement requires that an accountant arbitrator issue a “reasoned award,” the award was a valid reasoned award where it stated that it was based on the parties’ statements and accounting records, pointed to specific findings, and explained which evidence the arbitrator found relevant in determining the award amount.
Tags: business arbitration, arbitration agreement
Arbitrator Qualification Objection Waived If Not Raised at Arbitration Hearing
The Fifth Circuit Court of Appeals held that a party seeking to vacate an arbitration award cannot do so on the basis of an alleged violation of the governing arbitration rules relating to the qualifications of one of the arbitrators sitting on the panel if that party has not raised the rules violation issue in the arbitral proceeding itself.
Tags: business arbitration, arbitration procedure
Inconspicuous Hyperlink to Terms in Cluttered Email Renders Arbitration Agreement Unenforceable
The Second Circuit Court of Appeals held that the online purchaser of a protection plan to cover an electronic device was absolved of the general duty to read the terms of the contract, which included an arbitration clause, where the hyperlink to the terms was inconspicuously embedded in a complex and cluttered email and the import of the hyperlink was not called out to the purchaser.
Tags: arbitration agreement
Employer Can Arbitrate Under Agreement Signed by Employee and Staffing Firm
The Third Circuit Court of Appeals held that a non-signatory employer can compel arbitration under an arbitration agreement signed only by the employee and the staffing firm retained by the employer under “alternative equitable estoppel” principals where there is a close nexus between the non-signatory and the contract or where the signatory must rely on the contract to assert claims against the non-signatory.
Tags: employment arbitration, arbitration agreement
U.S. Supreme Court Holds Class Arbitration Not Permitted where Arbitration Agreement is Ambiguous
A 5-4 majority of the United States Supreme Court held that class-wide arbitration is fundamentally different than individual arbitration such that parties to an arbitration agreement that is merely ambiguous as to whether class-wide arbitration is permitted cannot be compelled to participate in class arbitration.
Tags: arbitration agreement, right to arbitrate
How to Make Sure Your Arbitration Speeds to Resolution
In many jurisdictions, court litigation can be a long, long slog. Speed-to-resolution is an often-cited advantage of arbitration, but what can parties do to ensure that this speed advantage is fully realized in a future dispute that could arise?
Tags: arbitration procedure
No Waiver of Right to Arbitrate Employment Dispute After Filing Litigation Under a Different Agreement
The Northern District of Illinois held that a party does not waive the right to arbitrate claims related to a contract by virtue of the fact that the party had previously litigated “sufficiently distinct” claims against the same party under a different contract that did not include an arbitration provision.
Tags: employment arbitration, right to arbitrate
Award Vacated Where Arbitrator Ignores Regulations Incorporated By Reference
The Ninth Circuit Court of Appeals ruled that an arbitration award that ignores the incorporation by reference of applicable federal regulations in aid of a less sophisticated party is irrational and should be vacated under the arbitrator “exceeded their power” standard of the Federal Arbitration Act.
Tags: business arbitration, award enforcement


business arbitration
arbitration agreement
award enforcement
mediation practice
employment arbitration
franchise arbitration
family law
mediator techniques
court-ordered adr
non-signatory issues
state arbitration law
federal arbitration act
arbitration procedure
right to arbitrate
arbitrator powers
small FORUM Logo
SOC II Compliant Logo