Arbitrators Axed By FINRA After Deciding Against Merrill Lynch Are Reinstated
Suzanne Barlyn reports July 25, 2012 (Reuters) that the Financial Industry Regulatory Authority (FINRA) reinstated three securities arbitrators axed after an arbitration panel awarded $520,000 against Merrill Lynch. Because FINRA routinely cycles arbitrators through its roster, crossing an arbitrator off its roster is not, in and of itself, especially notable. But the proximity in time to the negative award (negative, from the point of view of a large firm), and the reinstatement of three arbitrators is unusual. Does anyone believe that just because a major firm was dinged with an adverse arbitration award, FINRA would exercise anything less than absolute impartiality in the choice of arbitrators for its roster?
Making Mediation Work
Attorney Richard Shore has a July 25, 2012 article online in Forbes proposing “Four Tricks That Make Mediation Work”: “1. Let the other side pick the mediator . . . 2. Don’t argue about who is right . . . 3. Leave the litigators at home . . . 4. Deal with hard issues last.” Our comments: No. 4 – Generally a good idea to build a dialogue before cutting to the chase. No. 3 – Having one team of settlement counsel, and another team of litigation counsel is a luxury that many clients cannot afford. No. 2 – Generally a good idea, though “venting” may sometimes be a necessary part of the process. No. 1 – There is plenty of lore about picking a mediator. Mr. Shore’s suggestion has the merits of speeding up the process and putting a mediator in place who may have leverage to convince your opponent – though you may have reservations about a mediator your opponent has chosen. It would be interesting to see empirical studies relating satisfaction with outcomes to the process used to select a mediator.
San Luis Obispo Homeless Mediation
On July 26, 2012, Nick Wilson reported in The Tribune (SanLuisObispo.com): “Lawyers litigating over whether people can live and sleep in their cars in the city of San Luis Obispo formally agreed to mediation in San Luis Obispo Superior Court on Wednesday [July 25, 2012].”
Mediating Sex Abuse Cases
Tom Gallagher reports in the July 20, 2012 National Catholic Reporter about, “Mediation: A new model for settling sex abuse cases.” The Spokane, Washington, diocese announced a new settlement culminating nearly a decade of litigation concerning sex abuse cases and a bankruptcy filing earlier that cost the diocese $48 million.
Because we thought that Bishop Blase J. Cupich’s comments about the mediation process were insightful, we repeat his comments, as reported by Mr. Gallagher:
- “Understand that you are not going to control the outcome,” he said. “The solution is not going to be immediately evident. It’s key to have ongoing dialogue with the mediator. You have to see your opponents as your partners, to trust each other and for both sides to let go of trying to control the outcome.”
- “Understand that this is going to take a long time to accomplish.”
- “You cannot get mad. If you get mad, you will lose.”
- “Revisit your goals because you may have had a certain expectation or a certain aspect of a goal, but you should be willing to keep testing these expectations.”
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