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Today's the day the U.S. Supreme Court tackles unconscionability in arbitration.  

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The U.S. Supreme Court today set the date for its next arbitration argument, in the Rent-a-Center West v. Jackson, 09-497. 

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Just before Thanksgiving, Irvine, Calif.-based ADR provider JAMS, released a proposed policy for  the appointment of a  “Mediator-in-Reserve”  in international arbitrations. A public comment period ends on Jan. 1.  Click through for details

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Connecticut's tough residential mortgage foreclosure situation gets some good news from a new mandatory mediation program

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Should mediators publically declare a settlement to be fair?

It’s an interesting question vetted in a column in today’s Daily Journal, Los Angeles’s legal newspaper, by Jeff Kichaven and Jay McCauley, mediators at Professional Mediation & Arbitration, a new Los Angeles-based mediation firm.  The veteran practitioners are dead against neutrals’ fairness opinions

According to the article authors, it has become “apparently customary” for courts to ask mediators whether a class action is fair.  The authors say that mediators are agreeing to provide the opinion letters as a marketplace reality–that is, do it or risk not getting hired later.

The practice is “senseless,” say Kichaven and McCauley.  “Fairness declarations are irrelevant.  Worse, they place us all on the road to corruption.  Lawyers should never request them, mediators should never provide them, and most importantly, courts should never invite them and should always strike them from consideration.”

The article is available with subscription at the Daily Journal’s webpage, here.

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The Canadian periodical Lawyers Weekly last week took a look at issues in arbitration, and in the article by Randy Pepper, a Toronto barrister, used an article authored by the CPR Institute's president, and discussion at CPR Institute meeting from earlier this year, to warn against the danger of "American malaise" infecting Canadian arbitration.

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The U.S. Supreme Court just announced an argument date for its newest arbitration case, on the rights of nonsignatories.

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The latest Dispute Resolution Magazine (ABA DR Section) collects studies rebutting last year's Public Citizen report.

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Supporters of an ambitious Netherlands-based mediator credentialing initiative fire back at a vociferous critic.

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Today's Wall Street Journal looks at an amazing attempt to fake an arbitration involving retailer American Apparel.

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Tributes poured out today worldwide to mark the sudden passing of an ADR legend.

Thomas W. Walde, a professor at the University of Dundee in Dundee, Scotland, and an expert in energy law conflict resolution processes, died after falling at his home in Southern France on Sunday.

Walde was born and educated in Germany, and received an LL.M. from Harvard Law.  He moved on to the United Nations, working on a wide variety of projects but eventually focusing on energy-related issues.

Best known as an educator, and an arbitrator and expert witness in international arbitration cases, Walde also mediated.  He was the neutral in a $500 million dispute at the Falcondo mine in the Dominican Republic.  He also successfully mediated cases between private oil companies under a joint operating agreement, and a high-value dispute between the Swedish and Polish energy companies.

You can see his full CV on the Dundee University site here.  Links to many of his articles are available, with subscription, at this profile.  Walde was a founder and executive director for more than a decade of the Centre for Energy, Petroleum and Mineral Law and Policy at Dundee.

In recent years, Walde spread the word on using dispute resolution via a website  and accompnaying journals he edited, Transnational Dispute Management, and as moderator and owner of “OGEMID,” a list serv available through the TDM site whose name is an acronym for “oil-gas-energy-mining-investment disputes.”

That list serv buzzed today with condolences and remembrances.  Several posters credited Walde with expanding the international use of ADR processes, and vowed to continue his work.

--Russ Bleemer, Editor, Alternatives

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An interesting New York Law Journal analysis says the state of the law demands specifying consolidation of arbitration matters in your contract when you want it.  And, more important, specifying when you don't want it.

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The New York Times today has a report that says striking a deal is the way to go ina lawsuit, especially for plaintiffs.  A trial is rarely the right choice.

You can find it here: http://www.nytimes.com/2008/08/08/business/08law.html?_r=1&scp=1&sq=plaintiffs&st=cse&oref=slogin

A followup story also is running on National Public Radio's Marketplace today.  You can listen in here:

http://www.npr.org/templates/story/story.php?storyId=93420269&sc=emaf

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Today’s Wall Street Journal Letters column features three rebuttals to last week’s op-ed denouncing Congressional moves to limit arbitration.

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Hall Street Associates, Redux

This year’s biggest U.S. Supreme Court ADR case is back in a federal trial court for more litigation.  The Ninth Circuit remands Hall Street Associates to examine whether a Federal Rule of Civil Procedure or the ADR Act of 1998, could allow judicial review modifications in arbitration contracts.

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