California Mediation and Arbitration

Reviews: We the Corporations: How American Businesses Won Their Civil Rights

Marc Alexander (This Blogger) Has Reviewed The Book For California Litigation.

        In the latest issue of California Litigation, Vol. 32, No. 1 (2019), p. 25, I've reviewed Adam Winkler's We the Corporations: How American Businesses Won Their Civil Rights. You can read the review, which is republished with the permission of California Litigation, by clicking here.

Book Reviews: Richard L. Hasen's "The Justice Of Contradictions: Antonin Scalia and the Politics of Disruption"

Marc's Review Of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Prof. Richard L. Hasen's book, The Justice of Contradictions: Antonin Scalia and the  Politics of Disruption, is made available by clicking here.

Miscellaneous Reviews: Books By Sunstein, Tribe And Matz About Impeachment

Two Books Reviewed By Your Blogger In Latest Issue Of California Litigation.

    In the latest issue of California Litigation, Vol. 31, No. 2 (2018), p. 44, I've reviewed Cass R. Sunstein's Impeachment: A Citizen's Guide, and Laurence Tribe and Joshua Matz's To End A Presidency: The Power Of Impeachment. You can read the review, which is republished with the permission of California Litigation, by clicking here.

International Arbitration, Reviews: Article On "Golden Opportunities For The Golden State" Addresses Rise Of International Arbitration In California

Passage Of SB 766 Opens Up Opportunities For Foreign Attorneys To Participate In International Arbitration In California.

    An excellent article by Eric Z. Chang appearing in California Litigation --The Journal of the Litigation  Section of the CLA, Vol. 31,No. 2 (2018), p. 27, explains how an ambiguity in the law as to whether foreign attorneys could participate in international arbitration in California has been cleared up by the passage of SB 766. The problem had been uncertainty as to whether foreign attorneys who participated in international arbitration in California were engaging in the unauthorized practice of law. With the legislative fix now in place, Chang sees a bright new future for expanding the large market for international arbitration in California.

Review: Creative Mediation Solutions

Mediator Paul Fisher's Article Describing Varieties of Mediation Is Available On-Line.

        A classic summary of "Creative Mediation Options" (August 2000) authored by California mediator Paul Fisher is available on-line at this link.  Paul Fisher describes, and summarizes advantages and disadvantages of: baseball mediation, golf mediation, pocket golf mediation, binding mediation [perhaps an oxymoron], high-low mediation, mediation/arbitration, arbitration/mediation, and mini-trial.

Book Reviews: Jeffrey Rosen's American Prophet: Louis D. Brandeis

Marc's Review of Jeffrey Rosen's American Prophet: Louis D. Brandeis, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Jeffrey Rosen's book about Justice Louis D. Brandeis and his thought is made available here.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Jeffrey Rosen's book about Justice Louis D. Brandeis and his thought is made available here.

Articles: The Widespread Use of Workplace Arbitration Among America's Top 100 Companies

Most Of The Top Companies Have Arbitration Clauses, And More Than Half Have Class Action Waivers.

    Prof. Imre Szalai, Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law, has published an article entitled "The Widespread Use of Workplace Arbitration Among America's Top 100 Companies."   

    Prof. Szalai summarizes his key findings:

• 80 of the top 100 largest companies in America, including subsidiaries or related affiliates, have used arbitration agreements in connection with workplace-related disputes since 2010.
• Of the 80 companies with arbitration agreements in the workplace, 39 use arbitration clauses containing class waivers.
• Over half of the companies in the Fortune 100 appear to have imposed forced arbitration clauses on workers; such workers did not have a meaningful choice to accept or reject the arbitration clause.

    Those conclusions present questions for us:  if 80 of the top 100 companies use arbitration agreements in connection with workplace-related disputes, why don't 20 of the companies use arbitration agreements?  If 39 of 80 companies use arbitration clauses containing class waivers, why don't 41?  And if over half of the companies have imposed forced arbitration clauses on workers, why haven't nearly half not done so?  Have the companies that don't rely on arbitration clauses, class action waivers, and binding arbitration made a conscious policy decision, or are they simply behind the curve set by other employers?

Reviews: Two Articles In The Economist Are Critical Of Arbitration In The United States

Emptying The Courtrooms . . . 

    The January 27, 2018 edition of The Economist has two short articles critical of arbitration in the US:  "Shut out by the small print" (p. 10) and "Kept out of the courthouse" (p. 61).  The articles are somewhat duplicative -- here are a few of the highlights:

• In the early 1990s, 2% of non-unionized employees were bound by mandatory arbitration agreements - now it is more than half.
• Arbitration was originally designed for commercial disputes, and works best when power is balanced between the two sides.
• In employee/employer disputes, and business/consumer disputes, power tends to tip in favor of the employer and the corporation.,
• Employers tend to have better outcomes in arbitration than in court lawsuits.
• Given the political climate, legislative attempts to limit arbitration seem unlikely.
• "The popularity of arbitration is a sign of how very costly and technical the courts have become, says Andrew Pincus, a partner at Mayer Brown, a law firm, who advises companies on such procedures."
• Consent to arbitration is "a fantasy of consent, rather than the real thing," says Katherine Stone at UCLA.
• Arbitrators in employment disputes may be especially reluctant to award punitive damages, out of concern that they will never arbitrate another employment dispute.
• The confidential aspects of arbitration and lack of transparency may silence victims.
• "In the wake of the #MeToo movement, legislators are now taking aim at arbitration in harassment cases."

        HAT TIP to my colleague Mike Hensley who brought the two articles to my attention today.

Reviews: Ari Berman's "Give Us The Ballot"

Your Blogger Has Authored A Review Of Ari Berman's Book About The Voting Rights Act Of 1965.

        I've written a review of Ari Berman's book, "Give Us The Ballot."  The review, which appears in the latest  issue of California Litigation, The Journal of the California State Bar, is republished here, with the permission of the State Bar.  

           HAT TIP to Professor Justin Levitt at Loyola Law School, Los Angeles, for providing us with a link to his excellent article, The Party Line: Gerrymandering at the Supreme Court, also appearing in California Litigation, Vol. 3, No. 3 (2017).

Reviews: The Case For Creating A Mediation Department

Mediator Dennis S. Klein Makes Case For Creating A Mediation Department In Your Law Firm.

        In a November 14, 2017 article available through Law360 and LexisNexis, Dennis S. Klein, owner of Miami-based ADR firm Critical Matter Mediation, advocates "The Case For Creating A Mediation Department At Your Law Firm."  

        Mr. Klein makes four arguments:  (1) the volume of mediation is high, as few cases proceed to trial, and many cases are resolved through ADR; (2) the mediation skill set is specialized; (3) there is a growing trend toward expertise in litigation; (4) client relations benefit when the client knows the lawyer seeks a cost-effective solution.  

        So why haven't law firms created mediation departments, just as they have created specialized appellate practice departments?  My hunch is that many transactional and litigation attorneys view mediation skills as generalized skills that they are endowed with.   The bar exam does not test for mediation skills.  And yet many of us know outstanding litigators who prefer their role as committed advocates to having to deal with unsatisfying negotiation and compromise.  Mr. Klein's proposal is worth consideration, especially by large law firms with a critical mass of cases that  will proceed to mediation.