Robert J. Jossen, Matthew L. Mazur and Michael J. Sullivan of Dechert write: In drafting arbitration agreements, parties should deal with discovery issues at a time when they are in an agreeing mood. Where this has not occurred, counsel must take a targeted approach to arbitration discovery. The focus must be on obtaining evidence necessary to prove key facts at a hearing, with recognition that many of the evidence-gathering tools familiar to civil litigators may be unavailable.
John P. DiBlasi of NAM’s Hearing Officer Panel provides a synopsis of some of the items that should be considered when drafting the arbitration clause. A general observation is that specificity is a must.
Andrew S. Nadolna, a neutral with JAMS, writes: Given the process courts must follow in deciding allocation and exhaustion issues in New York, long-tail insurance claims will continue to strain court resources, and in certain cases, may even harm policyholders. Focused mediation early in these disputes may provide more cost-effective resolutions than litigation, and may avoid unexpected results.
Christopher Ryan, Jonathan Greenblatt and Henry Weisburg of Shearman & Sterling write: To help protect against various pitfalls, tiered dispute resolution clauses must be properly drafted. However, dispute resolution clauses often receive little attention during the drafting process despite their importance within the broader contractual framework. Inattention to this critical clause can frustrate the parties’ intentions or render the clauses unenforceable.
Joseph P. Spinola, a dispute resolution professional with Resolute Systems, provides 25 pointers to help increase your success at mediation.