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Judicial Reforms in Poland – Context and Controversy

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By Maciej Jóźwiak

After November 2015, when the right-wing party, Law and Justice (PiS), won the parliamentary elections and obtained majority in the Polish Parliament, a number of judicial reforms were commenced that stirred-up dramatic controversy in Poland and in Europe. The reforms covered the two key Polish judicial institutions – the Constitutional Tribunal and the Supreme Court. The Government also introduced changes in the law regarding state courts and prosecutors.

This play called “judicial reforms” started with an amendment which combined the roles of the General Prosecutor and the Minister of Justice. Currently these two positions are handled by one man. The amendment granted to a politician (the Ministry of Justice) the right to be involved in and to supervise all penal ongoing proceedings, either conducted by a prosecutor or before the court. This amendment restored a legal status of these positions changed in March 2010 by the previous government, established by the Civil Platform (PO).

The second act in the reform drama was the amendment to the Act on the Constitutional Tribunal. The reform itself was initiated by the previous government. On 8 October 2015, PO introduced a new law regulating the nomination procedure of the Constitutional Tribunal judges. Under this law the previously tenured Parliament was entitled to nominate two additional constitutional judges (two more than the standard three) for the next nine years. The Act, however, has been sent to the Constitutional Tribunal for a determination as to whether it is constitutional. In the meantime, the President of Poland, who won the election as the representative of PiS, refused to swear-in all five judges.

On 19 November 2015, PiS introduced a reparation Act which allowed the newly tenured Parliament to again nominate five constitutional judges, three already nominated by the previous Parliament and two new ones. Moreover, under this Act, the tenure of the President and the vice-President of the Constitutional Tribunal was terminated. The whole process of the introduction by the Parliament, the signing by the President and the entering into force of the reparation Act took no longer then one week. Under the new reparation Act, five new judges were nominated on 2 December and four of them were sworn-in by the President at night, between 2 and 3 December 2016.

On 3 December, the Constitutional Tribunal issued a judgment concerning the amendment Act introduced by PO. In its judgment, the Tribunal decided that three of the nominees were appointed properly but the appointment of the other two was unconstitutional. The government refused to publish this judgment. On 9 of December 2016, the Constitutional Tribunal ruled that the provisions of the reparation Act regarding nomination of the three already appointed judges and the termination of the tenure of the President and vice-President of the Tribunal were unconstitutional. The government refused to publish this judgment as well.

After 9 of December 2016 two additional amendments acts were introduced by PiS. Both were analyzed by the Tribunal and neither was declared constitutional. Neither judgment of the Constitutional Tribunal regarding these amendments was published by the government.

The second act of the reforms focused on the Supreme Court and the National Judicial Council. The amendment to the Act on the Supreme Court was introduced by PiS, together with an amendment to the Act of the National Judicial Council and the Act of the System for the State Courts.

The two key changes at the Supreme Court concerned: (i) a default retirement of all the Supreme Court judges, with the exclusion of those who are indicated by the Minister of Justice, and (ii) an appointment of a new chamber in the Supreme Court, dedicated to hearing disciplinary actions against judges.

The amendment of the law concerning the National Judicial Council focused on the politicians having more influence on this judicial body by establishing the new chamber of the Council, made up of Parliament’s representatives. This new chamber would have the right to veto all decisions taken by the “old chamber,” where inter alia sit judges as well as representatives of government and the representative of the president, among others.

And finally, we in the audience saw the Act of the System for the State Courts, which contained the following changes: (i) the power of the Ministry of Justice to call off and nominate new presidents of the state courts was established; (ii) cases were allocated between the judges based on their “weight” which is established by the Ministry of Justice; (iii) a case would have to be examined by the same judge from beginning to end; and (iv) the Act distinguished the age of retirement between male and female judges.

The proposals described herein have raised crucial constitutional doubts and even inspired a series of street protests by Polish citizens in many cities all over Poland.

The President of Poland decided to veto two of those acts (the Act of the Supreme Court and the Act of the National Judicial Council) and has signed the third one. The Act of the System for the State Courts comes into force 14 days after being published.

The drama, however, continues. The President has announced that he will prepare and present his own proposal of the amendments to the Act on the Supreme Court and the National Judicial Council within a couple of months. Thus, we are still waiting for an epilogue.

These reforms were introduced to improve the judicial system in Poland. As it was presented, the new law was intended to speed up proceedings, making the system more transparent and understandable for citizens. Instead, however, the reforms have made the judicial system more dependent upon politicians.

In times where certainty of the independent judicial system is one of the most important factors for business development, the situation in Poland is being viewed by some with worry. To minimize the risk of adverse influence of these recent legislative changes on business, many entrepreneurs are opting to include arbitration clauses in their contracts. Despite some formal requirements for arbitration clauses under the Polish law, arbitration and other ADR methods may offer just the calming influence needed to counter the dramatic recent changes in the Polish judicial system.

Maciej Jóźwiak is an attorney at law on the dispute resolution team at Wierzbowski Eversheds Sutherland. He can be reached at maciej.jozwiak@eversheds-sutherland.pl

Litigation vs ADR – Different Strokes for Different Folks

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steven_125By Judge Steven Platt

My last column described the cultural, economic and structural changes in the legal and business communities that have transposed “Alternative Dispute Resolution” (ADR) from a “cross-practice” which litigators engage in when they are contractually required or court-ordered to do so to a fully-integrated but increasingly separate and distinct set of dispute resolution services to be offered by law firms or other private “Dispute Resolution Firms”, “Groups”, and “Individual Professionals”. As I pointed out in that column the Judiciary has also, albeit belatedly, in the last 25 years recognized this primarily economic, but also legal and political reality and begun to provide or at least encourage individual and corporate litigants to seek cost effective and time sensitive alternatives to full-blown litigation.

That trend is now firmly in place and developing to the point where even some courts, specifically the Chancery Court in Delaware, have begun to formally offer other dispute resolution services as alternatives to their traditional inventory of services. Until recently courts restricted the services they offered to litigation and “settlement conferencing.” The Delaware Chancery Court has expanded this to institutionalize arbitration, evaluative mediation and neutral case evaluation services by the “Sitting Chancellors.”

This has produced a further change to the structure, operations, and culture of mid-size to large law firms albeit slowly because of entrenched resistance based on law office economics and egos. Until recently for example under the prevailing law firm business models and processes, transactions belonged to the “Corporate Department”, wills and trusts to “Trusts & Estates (T&E)” and Bankruptcy to their own discrete practice areas or Boutique Law Firms. Within these typical structures “disputes” have been the exclusive domain of the litigators.

It should not therefore be surprising to encounter resistance to this change by litigators who have historically settled most of their cases (98%) without help from a third-party neutral either privately retained or court-imposed. Many litigators on their own have adapted to the changing client expectations for a faster and less expensive resolution of their disputes by engaging in more extensive and intense settlement negotiations as a part of the litigation process or as Robert Marguilies, a business litigator in New Jersey calls it – “Litigoatiation.”

This resistance and the reason for it however are based on a fundamental misunderstanding of the purpose and processes of Alternative Dispute Resolution. What those who resist the expansion of the techniques utilized to resolve disputes beyond the traditional litigation process even when it includes a large element of “litigotiation” do not comprehend is that the use of these alternative dispute resolution techniques is not just to settle the specific dispute before them but to resolve latent client goals and concerns which have led to their dispute. These other concerns almost always include addressing the underlying causes of the dispute as a means of preventing future conflict between the parties or even with third parties.

This is not always the case as for example where the dispute is purely over money such as in negligence cases resulting from automobile accidents, etc. But even in cases where professional liability issues are to be resolved, there are clearly other issues and interests to be addressed besides purely dollars and the merits and value of the claims and defenses. These can include reaching a resolution that does not engender future litigation or conflict between the policy holder and the carrier, as well as future underwriting issues between the policy-holder and the carrier. There can also be issues and interests related to professional discipline and registration involved.

The resolution of these issues are not easily achieved by the standard “position-based” settlement negotiations by lawyers that typically occur at various stages of a case which is being litigated. Furthermore it is clear to anyone who has engaged in both that settlement discussions between litigators with multiple and alternating agendas are of a different nature and quality than those led by a qualified neutral ADR professional committed to only finding an amicable comprehensive resolution to the dispute and the underlying cause of it. The former is most often intermittent, limited, unconcentrated (mixed in with litigation issues) and unfocused on a comprehensive resolution. The later is structured, concentrated and focused solely on a comprehensive settlement of all issues including those which caused the dispute to occur in the first place.

Litigators who are not trained as Mediators are also likely to confine their position-based negotiations to remedies available through the court in which the litigation is filed. This arbitrarily restricts the ability of the parties to satisfactorily and comprehensively resolve their dispute in a way that addresses the underlying issues which produces the conflict as well as eliminate the conditions which might create future controversies.

Finally, particularly in Maryland, position- based negotiations directly between lawyers acting as advocates for their clients are of necessity constrained by case law from The Court of Appeals. This case law in effect makes the issue of whether an attorney for a party who recommended a settlement based on what an “expert” now says was “insufficient information” as a result of inadequate or incomplete discovery a “jury question.” This exposes lawyers to professional liability if there is not universal acceptance that he/she complied with the standard of care within the “Expert Witness Community” whose ads can be found in many legal magazines. This exposure as a practical matter can be limited if not eliminated by skillful drafting of retainer agreements and/or settlement agreements. But if it is not, then the attorney in order to insulate himself or herself from a future adverse finding by a jury (not made up of other lawyers) will instinctively refuse or at least delay engaging in settlement discussions which may also be limited for these same reasons. This will have the effect of adding both unnecessary time and expense to the conduct of the case before even discussing settlement.

Which dispute resolution technique should the parties utilize in the Multi-Door Courthouse or Conference Room of the future? Stay tuned to this same newspaper and column for the answers to that question next month.

This post is reprinted with permission from “A Pursuit of Justice,” a blog by Judge Steven I. Platt (Ret.) that focuses on the intersection of law, economics, politics and the development of public policy.  Judge Platt currently owns and operates his own private Alternative Dispute Resolution Company, The Platt Group, Inc. through which several retired judges and experienced practitioners offer mediation, arbitration and neutral case evaluation services to business, governmental agencies and their lawyers mostly in complex litigation and disputes.  Judge Platt’s experience and vocation make him an expert in conflict resolution particularly in complex disputes whether they are political, economic, legal, or as most often the case all of the above. Judge Platt can be reached at info@apursuitofjustice.com or via his website at www.theplattgroup.com.

CFPB Announces Final Rule Barring Mandatory Arbitration In Consumer Financial Contracts

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By Russ Bleemer

The broadest move by a government agency so far to restrict arbitration has been unveiled by the Consumer Financial Protection Bureau—a long-expected ban on the use of class-action waivers that require mandatory arbitration in consumer financial contracts.

While arbitration itself wasn’t the direct target, the practice has taken a public relations hit, becoming a proxy in a war over class-action processes.

Under the CFPB’s final rule—it proposed the ban last year under the Obama Administration after researching the subject since 2012—financial services firms, including those providing bank accounts and credit agreements, would be prohibited from using contracts that prevent consumers from joining together in class-action suits in court and require, instead, individualized arbitration processes.

Arbitration, the CFPB emphasized, would not be banned.

But it will be subject to unprecedented regulation.  Companies would have to note in their consumer credit agreements that the arbitration process being offered does not prevent the individual from initiating or joining a class-action suit.

And the companies using arbitration would have to provide the results of those processes to the CFPB, which on Monday announced it would post those cases, after redacting identifying information, on its website beginning in July 2019.

The rule, according to CFPB Director Richard Cordray, “prevents financial companies from using mandatory arbitration clauses to deny groups of consumers their day in court.”

Still, it may never get to the marketplace.  The rule, the CFPB said Monday, will be sent to the Federal Register for publishing, expected in the next week or two.  There is a total of 241 days needed for compliance before the rule is fully effective—the CFPB said it would announce an exact date upon publication.

In the interim, the Republican Congress may move to revoke it.  The 2017 Congress has embraced the Congressional Review Act, a formerly little-used 1996 law that allows it to review new federal regulations issued by government agencies and overrule them under a joint resolution.

This year, the CRA has been invoked 14 times to overturn regulations. The CFPB’s arbitration efforts have been squarely in the sights of banking and finance lobbyists, among others.

There are other options, including President Trump firing Cordray and replacing him with a director who would strike the CFPB proposal.  See Alan S. Kaplinsky, “Proposed CFPB Arbitration Rule Faces Multiple Obstacles,” 35 Alternatives 3 (January 2017)(available at http://bit.ly/2hRb943).

And H.R. 10, the Financial CHOICE Act of 2017, an April proposal by Rep. Jeb Hensarling, R., Texas, would repeal the CFPB’s authority to restrict arbitration.  The bill passed the House and has been referred to the Senate Committee on Banking, Housing, and Urban Affairs.

Late last month, the Trump Administration reversed course on mandatory employment arbitration contracts, switching sides in three consolidated U.S. Supreme Court cases to be argued this fall in which the National Labor Relations Board similarly had banned the use of arbitration clauses because they prevent class cases against employers.  See Nicholas Denny, “DOJ to NLRB: You’re On Your Own in the Supreme Court,” CPR Speaks (June 21)(available at http://bit.ly/2uJNDwC).

Said Cordray, “I am aware, of course, of those parties who have indicated they will seek to have the Congress nullify the new rule.” He said that such steps will be “determined on the merits.” He continued: “My obligation as the [CFPB director] is to act for the protection of consumers and in the public interest, [and] that is what I believe have done” with the release of the final class waiver-arbitration rule.

The CFPB’s press announcement, along with links to the rule’s text and a new video explaining the moves, can be found HERE.

Russ Bleemer is the editor of CPR’s award-winning magazine, Alternatives.

The U.S. Paris Climate Accord Pull-Out: From a Negotiation Standpoint, A Bit of an Artless Deal?

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By John Bickerman

President Donald Trump’s decision to have the U.S. withdraw from the Paris Climate Accord will undoubtedly have many repercussions in many different areas and industries, ranging from energy to environmental and well beyond. But, at its core, Thursday’s action can be boiled down to a deal negotiation. Below are a few basic alternative dispute resolution (ADR) principles, and how they apply to the U.S. Paris Accord pull-out:

Any analysis of negotiation strategy starts with identifying the ‘interests,’ not the positions of parties. One also must assume that parties behave rationally.  

The President has two plausible interests that he was trying to vindicate.  First, he could be trying to do what he said, which was protect American jobs; the second plausible interest is that he was trying to affirm and solidify his political base. The second appears to be the more rational explanation for his behavior. When the President returned from his European trip after failing to endorse fully NATO, his popularity ticked up, almost exclusively with his hard core Republican base. It wouldn’t be surprising if withdrawal from the Paris Accord further solidifies his base and marginally increases his popularity and affirms his promise to the voters he believes elected him.

A corollary would be that it gets the Russia investigation off the front pages, although based on the subsequent news cycles that seems highly unlikely. With respect to protecting American jobs, the better data suggests that this interest will not be achieved and employment in the U.S. could actually be harmed if foreign countries retaliate against the United States by enacting carbon taxes as some analysts have suggested they might. Moreover, there is a seemingly strong case that jobs are being created in the renewable energy sector that would surpass the jobs lost in the fossil fuel industry.  The Washington Post reported that there was a fierce battle in the White House over the decision.  The “withdrawal” side, led by Senior Advisor Steve Bannon, appear to have deluged the President with data that rejected the consensus view. Much of the data presented by the Bannon team was highly suspect, according to the Post.

Remember that only three countries are now not part of the Paris Accord — Syria, Nicaragua and the United States.  It’s extremely rare, perhaps unprecedented, to have such worldwide unanimity on an issue.

 A good negotiator also tries to understand how his counter-parties will react to his negotiating position.  

The Administration, either misjudged or doesn’t care about International repercussions.  Other countries, especially China, Germany and France will step into the vacuum created by the withdrawal of the U.S. As reported by the news media, China intends to ramp up its production of renewable energy products, potentially usurping a role that the United States could have.

The threat of an action often carries much greater leverage than the action itself.  

There is no opportunity under the Paris Accord to withdraw from its terms until 2019.  The President would have had much greater leverage if he had continued to threaten withdrawal between now and 2019 instead of playing his hand now. This line of thinking was apparently presented to the President by Secretary of State Tillerson and other according to news reports.  Clearly, the federal government has lost its leverage in influencing further changes in the pact.  Interestingly, 30 cities, 3 states, including California and 100 companies have formed an alliance that supports the Accord and will affirm their support to the U.N.  This development further undermines the influence President Trump will have on this issue.  It’s rare for a negotiator to dissipate his bargaining power in this manner.

The best negotiators are able to reach strategic and creative compromise with equal negotiation partners, and not only with weaker parties who are more easily pressured into action.

The President has not shown himself to be an especially good negotiator when there are other equal partners with which to negotiate. The strategy he employed in his business, when he was often negotiating with weaker counter-parties and could afford to stake out extreme positions, doesn’t work in International negotiations (or with the other branches of government) where parties are less likely to be “bullied” into agreement.

Time and again, since he took office, the President has staked out extreme positions or made ultimatums.  When his bluff has been called, he has lost all ability to negotiate and has been ignored. That’s what seems to be happening with the Paris Accord. The rest of the world will continue to adhere to the agreement. The United States has squandered its leadership position and has no “fallback” position that would allow it to exert any influence in the future, unless it rejoined the Accord.

There is no art to “re-negotiating” completely voluntary, or multi-party, deals.

Despite the President’s avowed intent to re-negotiate the Paris Accord, that will not be possible.  First, the Paris Accord has only voluntary commitments.  There are no binding obligations, other than the promise of the first world countries to pay for environmental efforts in developing countries.  (So far, the United States has paid $1 billion of the $3 billion it has promised to pay under the agreement.). Second, it’s not possible to renegotiate a multi-lateral agreement.  There simply is no “one” party with which to negotiate.

John Bickerman is the Chair of the International Institute for Conflict Prevention & Resolution’s Environmental Committee, a lawyer and the founder of Bickerman Dispute Resolution, PLLC

Facebook, Latest Leading Co. to Demand Greater Diversity in Legal Services

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We can’t like this enough so we thought we’d share it as well: Facebook is one of the latest well-known companies to make necessary strides in the area of diversity in law, apparently now requiring that women and ethnic minorities comprise at least 33 percent of outside legal teams working on its legal matters.

According to a New York Times article on this development,“Numbers alone, however, are not enough, under a policy that went into effect on Saturday. Law firms must also show that they ‘actively identify and create clear and measurable leadership opportunities for women and minorities’ when they represent the company in litigation and other legal matters.” The article also referenced a similar MetLife legal diversity policy to be announced later this month. 

This is great news, but it is still only a start. More needs to be done–not only by other companies large and small, but by all stakeholders to the dispute resolution process. And not only with respect to law firms, but mediators and arbitrators as well.

As CPR President & CEO Noah Hanft noted in his March 20 New York Law Journal Article, “Making Diversity Happen in ADR: No More Lip Service,” there are key roles for just about everyone to play in this process:

In-House Counsel: You are the drivers here.  According to Hanft, “You need to say not only that diversity is important to you, but to show that it is.” Referenced in both the NYT and NYLJ articles, and under the innovative leadership of GC Kim Rivera, CPR member HP announced in February that it would actually withhold fees – a 10% “diversity holdback” with certain conditions – from law firms that failed to comply with diversity requirements. 

Law Firms: “Try to learn of neutrals that you have not used,” Hanft suggests here. “What would be the harm when sending out the typical law firm memo asking whether anyone knows a good mediator in a copyright case, to specifically ask about diverse neutrals in that space? Be brave enough to do what your clients have told you they expect you to do in your own firm.”

Other ADR organizations: In the NYLJ article, Hanft lists education, mentorship and recruitment as important items on his own organization’s To Do list. He concludes, “But, most important, we must utilize our very best efforts to include those diverse candidates on slates; remind decision-makers of the benefits of diversity on the quality of the decision-making process; and then actively encourage the selection of diverse candidates.”

In sum, and in order to for diversity in law and ADR to “go viral,” we all have a social role to play. Tell your friends.

Shall We Have an Adult Conversation About Legitimacy?

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[A summary of the keynote address of Jan Paulsson on 2 March 2017 at the Annual Meeting of the CPR Institute at the Biltmore Hotel, Coral Gables, which has also been archived on CPR’s Facebook page.]

By Jan Paulsson

It is difficult to know when history is being made. Important developments tend to be incremental, and perceived only in hindsight. Yet I am willing to wager that we are in the middle of a decade this decade in which the international arbitral process seriously comes to grips with the existential need to secure acknowledgment of its legitimacy. This is not being done, and cannot be done, by individual arbitrators. The exemplary work of 50 is done in silence; the misconduct of one may become a first-page scandal. The heavy lifting must be done by arbitral institutions.

The three evils they must combat are: transparency deficits, entrenchment, and capture. Not all of the hundreds of arbitral institutions who purport to handle international disputes will do their part, because some of them were created and remain dominated by special interests, and like things the way they have them. They have other priorities than ensuring a fair and neutral process. These are not the successful institutions, but it is vital – lest all be tarred with the same brush – that they are recognized by tangible criteria for what they are. The test is not what institutions proclaim, but what they do; does their conduct prove a commitment to fairness and neutrality?

Thirty years ago Professor Hans Smit proposed in the Columbia Journal of Transnational Law (Vol. 25, p 30) that there should be a single global arbitral institution charged with the supervision of the arbitral process. If this could not be achieved by a voluntary process of federation, he suggested that the same goal could be reached by the establishment by the International Chamber of Commerce of a network of conveniently located branches around the world.  Existing institutions would be invited to “merge” into those branches, failing which the ICC would proceed alone. This may not have been a good idea at any time, given the dangers of bureaucratization and monopolistic complacency, not to mention prohibitive cost. And today it is surely an impossibility, given the emergence of a number of deservedly successful and robust institutions in a number of regions of the world. Still, Smit’s idea was founded on the crucial insight that international arbitration will suffer from the misconduct of what one might call its weakest links, and that it is necessary to be very clear about what the criteria of legitimacy are so that waywardness can be exposed by objective measurement.

This is not rocket science. The premise of international arbitration is that all commercial disputes, even those with stakes of billions of dollars, will be decided by three arbitrators, or even a sole arbitrator, and that the outcome is final. Let’s be frank; this is asking for a lot. Losing parties are often extremely unhappy, and quick to think that something has gone seriously wrong. When the institution has not been properly “designed for legitimacy”, the ultimate sad irony may be that each side thinks that its opponent has some occult advantage, and that each side therefore seeks achieve some compensatory secret trump card – even though their reciprocal suspicions had no foundation. This can be something like a death spiral.

Today I have the good fortune of having been asked to address the annual meeting of an organization which is known for having been created not by the service providers, but by consumers of dispute resolution services. How fitting it is therefore that in 2002 CPR took the unique initiative of developing a template for universal best practices suggested as suitable if not essential for any institution anywhere. This was called the CPR/Georgetown Commission’s 2002 Principles for ADR Provider Organizations. Much ground has been covered since then at the individual reforming initiatives of the leading institutions, but it was certainly a step in the right direction.

It seems that I have achieved modest notoriety for expressing doubts about the wisdom of the widespread practice of unilateral appointments of arbitrators. Given how insistently those who disagree with my ideas on this subject distort what I say, I could perhaps be forgiven if I concluded that the propositions I articulate must be very powerful. From where I’m standing today, I cannot tell if this audience is dominated by experienced lawyers or younger ones. Younger audiences are of course idealistic and invariably agree with me.  Older audiences are cynical and set in their ways, and always protest. So obviously I prefer the latter. It’s much more fun.

My opponents say that I want to do away with the fundamental right of parties to name their arbitrators. This is unfair; I do not that at all. In the first place, I believe in the freedom of consenting and informed adults. If arbitrants agree that each of them can name its best friend or favorite lawyer as arbitrator, that’s fine with me as long as everything is out in the open. I’m not sure the result deserves the name “arbitration”, but hey – what’s in a name? Second and more importantly, my animadversions against unilateral appointments have not led me to want to tear down the temple or destroy icons, but just to a modest proposal. Here it is: the default rule should be that if the parties have agreed to a three-member tribunal all three members should be agreed by both sides, or else by an appointing institution. It’s only a default rule, but I suggest it should not be varied by agreement until the dispute has arisen. That day the claimant can measure whether the dispute is going to be civilized or brutal. If the former – and perhaps that will be the case most of the time – it takes only a phone call to agree that each side can name one of the arbitrators in the usual way. If the latter, the claimant may well have reason to rejoice, faced with a bitter clash with a party who wants to break off relations forever and is likely to deploy scorched earth tactics, that the default rule is the one I suggest.

I have written at length about the disadvantages of the practice of unilateral appointments and will not go through them here. (See The Idea of Arbitration, Oxford University Press, Sections 5.4 and 9.4.) All experienced practitioners in the international field know what it is like when unilateral nominees misbehave, or when losing parties suspect undue influence. It’s an on-going concern, and I am not mollified by the “if it ain’t broke thesis.” Things may be tolerable most of the time, but most of the time is not good enough.

This was brought home to me when I read the heart-felt account published a couple of weeks ago of the experience of a lawyer participating in his first ICSID arbitration. I do not know him, but I am certainly aware that he is a prominent fixture of several decades’ standing in the Miami legal community. Indeed his office is only a mile away from the beautiful hotel where we are meeting now.  I will call him Mr X.  His account is interesting precisely because this is a sophisticated and articulate lawyer who discovers a process with which he is not familiar and feels compelled to express serious concerns. We do well to take the concerns of such thoughtful individuals to heart. I do know the two other arbitrators involved in the case, with whom I have participated in more arbitrations I can count. From what one can read in the award and the dissenting opinion, my only sources of information about this case, all three arbitrators behaved perfectly honorably and none should be embarrassed if I named them, but I will not do so since but I would find it a distraction to personalize a matter which I am using only as an illustration of what I believe to be a frequently recurrent and seriously troubling unease, maybe even a malaise.

Here’s the story in a nutshell. The case involved Costa Rica, which is all I have to say to enable anyone here with a laptop to learn as much as I know about the case.  From the parties’ point of view, the case was over in March 2014, when the parties filed post-hearing briefs.  After that date, the process seems (to the uninitiated reader) to have entered a black box, as the next recorded event is a challenge by the claimant, like a bolt out of the blue, to all three members of the arbitral tribunal. This dramatic event occurred in June 2015. You heard me: a year and three months later which the parties were presumably waiting passively, if with mounting impatience, for the award to come out. Something was obviously not right. We do know that the claimant’s complaint was based on the fact that the Tribunal’s legal secretary, a lawyer on the ICSID staff who as part of their function are present during deliberations and typically assist in such useful ways as retrieving documents from a voluminous file which the arbitrators are unlikely to transport in its entirety to the place of arbitration from their various home offices, had left ICSID’s employ to join the law firm representing the respondent. In other words, the claimant was complaining about a form (I might perhaps venture to say a mild form) of capture.

The challenge was dismissed nine months later in accordance with the relevant rules and practice. I say nothing about that.  The arbitrators, thus confirmed in their function, went about their duty to render a final award, which they did a few weeks ago, in January.  It turned out to be one of those cases where a number of issues  were decided 2-to-1, with each of the co-arbitrators finding himself either part of the majority or in dissent, and the presiding arbitrator always part of the majority. Mr X wrote the dissent which captured my attention. The first thing to say about it is that it is entirely respectful of the other arbitrators, with whom Mr X writes that he was “honored” to serve. He explained in lucid terms some significant differences of substance with respect to which he was disappointed to find himself in disagreement. Such things happen; reasonable people differ. But then we get to the troubling passages.

Mr X notes that “the period that followed the hearing was delayed by the embarrassing and unnecessary issues caused by the change in employment of the Panel secretary and other issues related to the impartiality of the panel.” What these “other issues” involved is not specified, and the challenge decision itself has not been published as far as I know. I have seen press articles referring to information to the effect that these issues had to do with the prior relations between the presiding arbitrator and the other co-arbitrator; such complaints are frequently raised by losing parties, sometimes on quite flimsy grounds, but let’s not pay heed to gossip or speculation or anonymous sources. Mr X then goes on to write that “I choose not to add any further comment on the issue of the secretary’s employment, but do wish to address the issue of the constitution of the panel and the issues of conflicts and impartiality.”

What Mr X then has to say is notably that “the arrangement whereby two of the panel members are selected by the parties to the agreement creates an uncomfortable aura of conflict which permeates, in my view, the proceedings” and that, although “I have worked hard to neutralize his factor as I am sure my esteemed [co-arbitrator] colleague has done”, the only panelist who did not have “an inherent conflict” was the chairman. Mr X concluded that the “appointment by a party of a judge to rule on the party’s claim creates an unnecessary barrier to pure objectivity” and recommended that ICSID consider prohibiting the practice of unilateral appointments.

This is not the occasion to discuss the feasibility or even desirability of such a prohibition, particularly in the case of ICSID since its rules are constrained by the text of the international treaty by which it was created. My point is rather to insist that this measured but heart-felt comment is one that all institutes and arbitrants should take to heart, recognize as not being an isolated phenomenon, and take as a compelling reason to consider ways in which this kind of unease can be alleviated.

I think I have heard and examined at length in writing all conceivable arguments against my suggestion that we move away from the practice of unilateral appointments as a default rule, and I challenge any one of you to a debate because I am confident that I will prevail. Prevail, that is, except if you make the one argument which is Kryptonite and will defeat me every time. Here is how you win the argument: you look me in the eye and say “I don’t trust the institution, and so as long as I can name one of the arbitrators I feel that I will reduce the risk of a runaway tribunal doing something crazy – but unappealable.”

That argument is indeed made, like it or not. Decent arbitral institution cannot fail to realize that it is a disappointing and sobering message, indeed something of an indictment. They must absorb this reality, and do try to do two things about it. The Big Thing is to earn such trust that this kind of worry about a runaway tribunal evaporates. The Little Thing is far easier, and may in practical terms be just about as good. It is to focus on the involvement of the parties in the selection of arbitrators, and to attend to the numerous adaptations and refinements that may take the edge off the disadvantages of what one might call unreconstructed unilateralism.

The CPR Institute took a noteworthy step in this direction with the well-known Rule 5.4 of its Rules for Administrated Arbitration of International Disputes, for which it deservedly won a prize as the best innovation of 2016 [from Global Arbitration Review]. It introduces what CPR calls a “screened selection process,” which allows parties to choose among proposed arbitrators but in a manner designed to keep the ultimately appointed panel members from knowing individual parties’ preferences. We need to see how this works in practice, and how similar initiatives function elsewhere. There will always, believe me, be attempts to game the system. If I may put it as a paradox, the only thing that must be constant is the readiness to change as we learn. The poacher never rests; neither can the gamekeeper…

But this is not enough. Institutions should not only be inventive themselves, but encourage parties to be inventive as well. Most often this concerns the parties’ lawyers. Why are we lawyers, so unbelievably inventive in argument, stuck in the mud when it comes to patterns of process? Can’t we all agree that in ideal circumstances an arbitral tribunal should operate as a team, and not as three sole arbitrators cobbling together something of dubious coherence that achieves an unappealable result but does not deserve to be called “consensus?” If we agree want cohesive tribunals capable of producing greater quality than their individual members, aren’t presiding arbitrators the captain of those teams? Why not give them an important role in the constitution of the team – perhaps identifying a number of individuals they find compatible, or complementary, and asking the parties to rank them. (This, by the way, seems to be a more likely route to diversity than to expect it from unilateral appointments by parties whose entire focus in making appointments is to win the case. The presiding arbitrator might say “I’m comfortable with the industrial context, but would like a member of the tribunal to be conversant with public international law; then we’ll be all set so the third member can be someone less experienced whom I believe will make a solid contribution and who merits the experience and exposure.”) Or how about each side giving the presiding arbitrator a list from which to chose each co-arbitrator on the basis of compatibility? Or even, when full confidence reigns, go all the way and allow the presiding arbitrator simply to come up with the two others, constrained by nothing except perhaps observations by the parties as to what kind of qualities or experience the case calls for?

Parties have also been known to achieve quite surprising things – if only they will pick up the phone and try. I have observed an interesting dynamic when two lawyers with a minimum of mutual respect agree (between themselves) to give each a right of veto with respect to the unilateral nominees, maybe once or twice. A cynic might say that the result will be that each will immediately propose wholly unacceptable names and then move on – but I say that such is not the unavoidable result, and no harm trying.  Or how about saying “If I appoint A, whom will you appoint? Are you saying B? Oh, no, then I’d appoint C.  What’s that, you like A? Well then, think of someone other than B”.

The possibilities are limited only by our imagination, and it is urgent that we unleash our capacity for innovation. As we have heard this morning from Noah Hanft as he enters his third year of leadership of the CPR, he and his staff are determined to give fresh impetus to the vigorous improvement of the dispute resolution process in all of its forms, and it behooves all of us to take a sympathetic interest in their efforts, which can only benefit all who believe that legitimacy in the resolution of disputes should not be negotiable.

Jan Paulsson is a founding partner of Three Crowns LLP, a specialist international arbitration firm. He holds the Michael Klein Distinguished Scholar Chair as professor of law at the University of Miami. 

 

 

Avoiding and Resolving Information Technology Disputes (CPR Master Guide)

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By Meghna Talwar

The latest survey released by Queen Mary University of London, in collaboration with Pinsent Masons (“the Survey”), highlights the growth of ADR in Technology, Media and Telecommunications (TMT) disputes. The Survey records 67% of the total disputes which are IT related.

Foreshadowing this important development, in 2005, CPR’s IT Committee released its master guide titled “Avoiding and Resolving Information Technology Disputes” which provides detailed information about resolution of IT disputes with the help of ADR mechanisms. The master guide’s 7 chapters provide different methods for addressing IT disputes from avoiding them in the first place to resolving them by arbitration. The first chapter gives companies a head start to set things in place prior to dealing with external parties. The chapter provides cues on how companies can assess, prioritize and define their goals and identify the possibility of dispute in the long run in order to plan their resolution techniques right from the beginning.

Chart 5 of the Survey states that 61% of the disputes related to IT systems are caused due to delay. The survey also mentions that such delay may be caused due to several attributing factors rather than one cause. Chapter 2 of the master guide suggests practices which companies may adopt to avoid delay. The chapter which is titled “Avoiding Disconnect Between Negotiation and Implementation” describes ways in which companies can formulate healthy negotiations with other parties thereby building a strong working relation with them. The chapter also focuses on how parties can develop a good understanding of the project as well as their own interpersonal relations which could ultimately lead to limiting the risk of contracting any disputes.

While Chapter 2 discusses building strong relations, Chapter 3 encapsulates the technique of building a strong project foundation based on strong partnerships. The chapter highlights the advantage of building partnerships at an early stage and describes methods to sustain such partnerships once they are formed. Also, the chapter offers interesting suggestions on conducting workshops with stakeholders to create synergistic relationships.

Often guidelines are limited to dos and don’ts of a process which are purely theoretical in nature. However, Chapter 4 of the master guide carries out case study of an IT dispute which enables companies to understand the practical implications of the master guide. The case study is an interesting concoction of facts and analysis with suggestions from the IT professionals who comprised the CPR IT Committee. Thus, the master guide provides a well-rounded view of IT disputes and the complications involved therein.

The Survey states that 50% of the respondents prefer mediation followed by 47% who prefer arbitration. Hence, there is an earnest intention on the part of the companies to resolve disputes without resorting to courts. However, it would be effective to resolve disputes at a preliminary level. Chapter 5 of the master guide speaks about the use of hierarchical positions to defuse disputes at an early stage. The chapter also emphasis on the need for protecting stakeholders, thereby maintaining a dispute-free atmosphere.

Chapter 6 introduces the concept of appointing a standing neutral. The chapter describes a standing neutral as someone who is appointed as a neutral in advance of any conflict. The appointment of a standing neutral could save the parties a substantial amount of time and cost in a way that the parties would get neutral assistance immediately on detecting a dispute without having to search for it when the dispute arises.

It is understandable that in certain cases it is impossible to avoid disputes despite adopting prevention mechanisms. Proliferation of social media is an example of unavoidable disputes. The Survey recorded 93% disputes arising out of social media attacks and 54% disputes arising out of traditional media attack. Chapter 7 of the master guide describes the dispute resolution program which companies may adopt if avoidance strategies do not work. The Survey points out the importance of Dispute Resolution (DR) policies which companies adopt. It stated that only 25% of the respondent companies did not have a DR policy. Thus, Chapter 7 could be helpful for companies which fall within the 25% bracket and could give the remaining 75% some tips for improvement, if required. The chapter also introduces the CPR Rules on Expedited Technology Dispute Resolution which includes rules for both arbitration and mediation proceedings.

The CPR master guide was introduced long before the introduction of the Survey. However, from the Survey it is quite evident that the issues revolving around IT disputes that were discussed in the manual remain to be a cause of concern, even today. Hence, the master guide proves to be an effective tool for addressing such problems and acts as a catalyst to innovate and introduce mechanisms for resolving IT related disputes.

Meghna Talwar is a fall intern at CPR.

To order a copy of CPR’s Master Guide, “Avoiding and Resolving Information Technology Disputes,” click HERE. And be sure to browse our many other publications in The CPR Store HERE.

 

New Suit Demands Faster Work on Veterans Benefits Appeals

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By Russ Bleemer

In the latest phase of an issue CPR has been following closely for almost a decade, the American College of Trial Lawyers filed suit last month against the U.S. Department of Veterans Affairs in a renewed move to improve an agency appeals process long beset by delays that prevent military personnel from getting timely benefits determinations.

Last week, President Obama trumpeted improvements in access to benefits, and cutting veterans’ incidents of homelessness.

But on the appeals issues, the President’s report conceded that the process is “broken,” a “state of affairs [that] is unacceptable and is failing veterans.”

The Backlog Bludgeons

The appeals backlog is a persistent problem. It is a different concern than the delays in medical care, which was the principal subject of a post-White House report analysis in the New York Times Saturday. Nor does the appeals backlog at the VA address the department’s responsibility for addressing veterans’ homelessness, an editorial also appearing over the weekend.

In fact, the new case, which is filed in the Washington, D.C.-based U.S. Court of Appeals for Veterans Claims, and requests mandamus relief, relies in part on a panel decision by the Ninth U.S. Circuit Court of Appeals matter that confronted the problem directly in 2011.  The California suit resulted in an order that the VA submit to a federal court a new process that would alleviate the backlog in the stalled claims and appeals matters.

But the panel decision was reheard en banc by the full Ninth Circuit, which overturned it. The opinion acknowledged the problems but did not dispute the constitutional findings. It cited jurisdictional issues—some weighted in separation-of-powers arguments, and most because of appropriateness of the claims for the U.S. Court of Appeals for Veterans Claims–in overturning the original decision. Veterans for Common Sense v. Shinseki, 678 F.3d 1013 (9th Cir. 2012)(en banc)(available for download at http://bit.ly/2b64YKo). The U.S. Supreme Court denied certiorari.

The July 21 U.S. Court of Appeals for Veterans Claims filing–in which the American College of Trial Lawyers represents a class of veterans whose benefits requests have been denied by the VA and whose appeals have not been processed in a timely manner–relies in part on the finding in the original Ninth Circuit decision that the delays violate the veterans’ constitutional due process rights.

Fellows in the Washington, D.C.-based trial lawyers’ group prepared the petition with two partners in the Atlanta office of King & Spalding LLP, and a partner in Washington, D.C.’s Williams & Connolly LLP, according to a press release.

“Thousands of veterans die before their appeals are decided,” states the petition.  It says that benefits appeals now take nearly four years to reach a decision, a situation the filing calls “disgraceful.”

CPR on the Backlogs

The CPR Institute addressed the appeals issue, which had been a subject of controversy for two decades, in a “Why Not ADR? Burdened by Backlogs, the System That Deals with Veterans’ Disability Claims Needs Help,” 25 Alternatives 131.  That September 2007 Alternatives article by Richard M. Rosenbleeth, a retired partner in Philadelphia’s Blank Rome LLP, who works as an arbitrator, was the first to suggest that conflict resolution processes should be deployed to alleviate the strain on the benefit appeals process.

Rosenbleeth proposed that a claims facility be established to swiftly address the languishing appeals claims.

Rosenbleeth followed the issue and returned to it in Alternatives pages repeatedly over the years. The CPR Institute on its website, as well as Alternatives and the national media, covered the Ninth Circuit case filings in 2009 through the 2012 en banc decision.

Key articles, available at the links and in full text on Lexis and Westlaw, included:

  • A piece in the July/August 2011 Alternatives (second page of the issue)—“‘This Is Their Wake-Up Call’: Ninth Circuit Trashes the Veterans’ Administration Claim Processes,’” 25 Alternatives 130 (July/August 2011)—discussing the case at length and analyzing the initial victory that became a basis of the new July Veterans Claims Circuit Court of Appeals filing.

Rosenbleeth explains that the current suit follows years of approaches to various legislators, the VA’s Board of Veterans Appeals, and a veterans’ organization requesting pursuit of a post-Shinseki solution, including ADR processes. The outreach efforts, Rosenbleeth says, were conducted by Fellows of the American College of Trial Lawyers, including himself; John A. Chandler, a partner in the Atlanta office of King  & Spalding, and J. Denny Shupe, a partner in Philadelphia’s Schnader Harrison Segal & Lewis LLP.

“Finally,” says Rosenbleeth, “the College decided a suit was necessary.”

Given the broad nature of the mandamus request in the new suit, and the U.S. Court of Appeals for Veterans Claims’ ability to order innovative relief—as well as the renewed political focus on the broader VA issues in an election—the new American College of Trial Lawyers suit may provide an opportunity for improving the benefit appeals process.

“What is needed is broad reform, and the problem is only going to get worse until Congress acts,” noted the White House’s report last week, “reiterating [President Obama’s] call for comprehensive legislative modernization of the appeals process.”  The report concluded, “Congress should act on this legislation without delay–our veterans cannot afford to wait any longer.”

The Veterans Claims appeals court has not yet scheduled further proceedings on the new suit.

The author edits Alternatives for the CPR Institute.

Examining New Jersey’s Arbitration Scrutiny

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New Jersey courts’ recent arbitration decisions have opened a floodgate of controversy en route to the establishment of new precedent.

The most recent case, Morgan v. Sanford Brown Institute, 2016 WL 3248016 (N.J. June 14, 2016)(available at http://bit.ly/29mSQkS), demonstrates the discord among courts in reaching a consensus about arbitration enforcement—or, at least, a strong New Jersey trend of scrutinizing the particulars of agreements before compelling ADR processes.

The case stems from a complaint by New Jersey residents Annemarie Morgan and Tiffany Dever, who had enrolled in an ultrasound technician program provided by defendant Sanford Brown Institute, a for-profit educational company that is winding down its operations. The plaintiffs alleged that the defendant violated the Consumer Fraud Act and had committed breach of contract, breach of warranties and negligent misrepresentation. The complaint alleged the institute misrepresented the value of the ultrasound program, the quality of its instructors, and that the school used high-pressure and deceptive business tactics that led the plaintiffs to finance the classes using high-interest loans.

“This New Jersey trend should be taken as a warning for employers to address their notice provisions.”

The trial court followed the ruling in Atalese v. U.S. Legal Servs. Group L.P., 219 N.J. 430, 99 A.3d 306 (2014), cert. denied, 135 S. Ct. 2804 (2015)(available at http://bit.ly/ZtfbW4), invalidating the arbitration clause because it didn’t provide proper notice that court remedies were being waived, and violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195.

The Appellate Division reversed, ordering arbitration, noting that the ADR clause was sufficiently clear for all parties.

Last month, the New Jersey Supreme Court reversed again, holding that the arbitration provision and delegation clause in the school’s enrollment agreement failed to comply with the requirements of First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995), and Atalese. The arbitration and delegation clauses also failed to satisfy the elements necessary for the formation of a contract.

The defendants had argued that Rent-A-Center West, Inc. v. Jackson, 561 U.S. 63 (2010), required a specific challenge to the delegation clause by the plaintiffs, but the New Jersey Supreme Court found that the lack of the challenge didn’t matter.

“The arbitration provision did not clearly and unmistakably delegate arbitrability to the arbitrator,” wrote Associate Justice Barry T. Albin for a 5-1 court, adding, “Plaintiffs cannot be faulted for not objecting to an inadequately limned delegation clause that, in addition, did not define arbitration as a substitute for a judicial forum.”

Consequently, whether the parties agreed to arbitrate their dispute is an issue for determination by the court.

This decision does not stray far from its recent predecessors—Scamardella, et al. v. Legal Helpers Debt Resolution LLC, No. A-4170-14T3 and L-2402-14 (Middlesex County and Statewide) (April 19, 2016), and Guidotti v. Legal Helpers Debt Resolution, L.L.C., No. 15-1054 (3rd Cir. Feb. 10, 2016)(available at http://bit.ly/1QOkCSm), vacating 866 F. Supp. 2d 315, 332–36 (D.N.J. 2011)–New Jersey cases in, respectively, state and federal courts that also denied motions to compel arbitration.

Atalese, the parent case for the rest, outlined disclosure requirements that the subsequent decisions have used as the reason for invalidating the arbitration provision. The New Jersey Supreme Court found that the arbitration provision in the case did not have “clear and unambiguous” language stating that the plaintiff was waiving her right to sue in court to secure relief.

“Two more unpublished decisions show the significance of the new trend in addressing notice in arbitration provisions.”

The New Jersey Supreme Court stated in Atalese that an enforceable arbitration clause “at least in some general and sufficiently broad way, must explain that the plaintiff is giving up her right to bring her claims in court or have a jury resolve the dispute.”
Furthermore, the waiver must “be written in a simple, clear, understandable and easily readable way.”

Similarly, Scarmadella ruled that the arbitration clause failed to comply with Atalese disclosure requirements.

Guidotti determined that the plaintiff had not received the account agreement containing the arbitration provision. The court did not require or permit discovery on that issue because it concluded that the existing documentary record was sufficient. Further proceedings will be held next month.

There’s other arbitration coming out of New Jersey courts to raise eyebrows. Just before Morgan v. Sanford Brown Institute was released, a published Appellate Division decision, Kleine v. Emeritus at Emerson, Docket A-4452-14T3 (N.J. App. Div. June 9, 2016), struck an arbitration agreement because a forum suggested by the contract’s use of the American Arbitration Association rules was ruled by the court to be unavailable. The personal injury case was against a nursing home; the decision included strong wording about the presumption to arbitrate.

And there’s more. Two more unpublished decisions show the significance of the new trend in addressing notice in arbitration provisions. Shortly after the Atalese decision, in Kelly v. Beverage Works NY Inc., No. A-3851-13T4 (NJ App. Div. Nov. 26, 2014)(unpublished)(available at http://bit.ly/29kJwR6), the New Jersey Appellate Division applied Atalese to decide whether the arbitration provisions in a collective bargaining agreement barred a plaintiff’s lawsuit for wrongful termination.

The appeals court first declined to consider the employer’s argument concerning preemption because that argument was not raised prior to oral argument. The Appellate Division then held that “neither the arbitration provisions nor the employee handbook put plaintiff on notice that he was waiving his right to try his claims in court.”

Therefore, those provisions did not clearly and unambiguously waive plaintiff’s right to seek a remedy in court and, thus, were unenforceable.

Similarly, in Milloul v. Knight Capital (App. Div. N.J. Sept. 1, 2015)(unpublished)(available at http://bit.ly/1INt69V), the Appellate Division held that an arbitration agreement between a plaintiff and his employer was unenforceable because it did not “even mention a waiver of plaintiff’s right to a trial.” Therefore, the contract did not meet the minimal requirement of stating “in some express fashion that the employee is sacrificing his or her right to a trial.”

This New Jersey trend should be taken as a warning for employers to address their notice provisions. Employers should carefully review every arbitration agreement to ensure that every employee understands that they are waiving their right to bring claims in court, and agreeing to arbitrate all claims that may arise out of the contractual relationship.

This report will be expanded and updated in September’s Alternatives. For more recent background, see Daniela Albert & Russ Bleemer, “New Jersey Court Again Refuses To Compel, Demanding Better Arbitration Notices,” 34 Alternatives 66 (May 2016)(available at http://bit.ly/29lwZeG).

______________________________________

CPR would like to thank interns Daniela Albert (working towards her LLM at Northeastern) and Elizabeth Heifetz (Brooklyn Law School), supervised by Alternatives editor Russ Bleemer, for their research and writing contributions to this post. A longer version of this post, with comments from the attorneys involved, will run in the September issue of Alternatives.

CPR’s World ADR Tour Continues

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Those who enjoyed “ADR Around the World,” summarizing the current state of ADR in Colombia, Mexico, Taiwan, and Turkey can continue exploring international arbitration and mediation through “Worldly Perspectives,” a series from Alternatives which ran from 2009 to 2014.

“Worldly Perspectives,” by Giuseppe De Palo and Mary Trevor, provided individual assessments of ADR in countries worldwide, such as Finland. The March 2012 issue of Alternatives noted the longstanding Finnish tradition of mediation use in labor disputes, but that the process is still emerging for commercial disputes. In 2011, the Finnish Parliament implemented the European Directive on certain aspects of mediation in civil and commercial matters (Directive 2008/52/EC), which is covered in “Update: Nations Are Sharing their Progress on Installing the Cross-Border Mediation Directive” from the December 2011 issue of Alternatives, but mediation retains uniquely Finnish aspects, such as the public nature of court documents in Finland, which can include mediation documents.

The April 2010 “Worldly Perspectives” noted the impact of economic trends on arbitration’s popularity in Jordan, while the Maltese Malta Mediation Center was discussed in Alternatives March 2013. Other countries covered throughout the series have included Morocco, Lithuania, Spain, the Netherlands, Belgium and Hungary, among others.

A number of columns in 2013 were focused on a controversial mandatory mediation requirement in Italy, which was implemented, declared unconstitutional, and then reinstated between 2010 and 2013. The October 2013 issue of Alternatives recapped the latest development, which concluded that the process was far from over.

The full text of these articles and further columns of “Worldly Perspectives” are available to CPR members through our website. In terms of future travels, the next update on the state of mediation in Italy, including the status of the mandatory mediation requirement, is forthcoming and will be featured here on CPR Speaks.