Dispute Resolution Section Reports and White Papers

Section Reports

New York Law in International Matters  
The increasingly global business community requires accurate and comprehensive information on choice of laws, procedures and legal systems to govern agreements, selection of the best forum in which to resolve their disputes, and the most efficient and equitable means of that dispute resolution. New York, as a global financial and commercial capital, plays a critical role in all these choices. 

Report on the Dodd-Frank Act (Adobe PDF File)
April 2011, The Section approved comments to be submitted to the Consumer Financial Protection Bureau with respect to the study of arbitration mandated by the Dodd Frank Act. The Section takes no position as to the appropriate treatment of consumer disputes, but strongly supports a thorough examination of dispute resolution processes to ensure that they are in the public interest and fair to consumers. The Section's comments identify issues that it is urged should be considered by the Bureau in its study.

Report on the Uniform Collaborative Law Act (Adobe PDF File)
January 2011: The Dispute Resolution Section of the New York State Bar Association (“NYSBA”) submits this Report on the Uniform Collaborative Law Act and Uniform Collaborative Law Rules (referred to herein collectively as the “UCLA”) promulgated by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) for the purpose of standardizing for those states choosing to adopt it the form of dispute resolution known as Collaborative Law.

Through the Eyes of New York Litigators
The Mediation Committee of the State Bar Dispute Resolution Section and the Alternative Dispute Resolution Committee of the New York City Bar surveyed New York civil itigators to explore their views on mediation. 

Guidelines for the Arbitrator's Conduct of the Pre-Hearing Phase of International Arbitrations
(Adobe PDF File)
November 2010: International Arbitration is a substantial practice in New York. Many international contracts provide for applicability of New York law, and such contracts often specify New York as a venue for international arbitration. However, there has been concern in recent years that the choice of New York as the site of an international arbitration might prompt the arbitral tribunal to depart from normal international practice by imposing American style discovery on the parties. It is the view of the international arbitration bar in New York that these concerns are not justified.

Final Report on Mediator Quality
May 2010: This report examines the issue of mediator quality/credentialing and makes recommendations for specific action steps for adoption by the Section.

Report on the Arbitration Fairness Act
April 2009: The Dispute Resolution Section of the New York State Bar Association ("the DR Section") urges Congress to carefully review arbitration bills introduced in Congress to ensure that they do not interfere with general commercial arbitration. This most particularly applies in the international context where arbitration is often the only practicable choice for dispute resolution.

Report on Arbitration Discovery in Domestic Commercial Cases
April 2009: As discovery proceedings have exploded in civil actions in the United States, there has been a trend to inject into arbitration expensive elements that had traditionally been reserved for litigation — interrogatories; requests to admit; dispositive motions; lengthy depositions; and massive requests for documents, including electronic data. This has particularly been the case as the use of arbitration has grown for the largest, most complex commercial cases.

Section White Papers 

Benefits of Employment Arbitration in Employment Law
February 2011: Alternative dispute resolution presents the only proven alternative to litigation of employment and workplace cases. Voluntary arbitration, at the option of an employee after a dispute has arisen, is non-controversial and of some benefit. Unfortunately, many times after a dispute has arisen, the parties become less flexible, gird for battle, and are less inclined to step back from judicial confrontation.

Resolving Disputes Among Small Business Owners
January 2011: Under current law, a court has relatively few options available to it to resolve disputes between partners, shareholders or managing members of business entities. Those options are often limited to a determination as to whether dissolution is appropriate, as that may be the only remedy that a court can provide. Derivative actions, too, are complex and uncertain in the closely-held entity context. Mediation and arbitration, on the other hand, are flexible procedures which can be focused on the issues and interests that are key to the parties, offer a whole range of remedial options and do so in an expeditious and cost effective manner.

Benefits of Mediation and Arbitration for Dispute Resolution in Securities Law
January 2011: Mediation and arbitration have particular applicability in the field of securities law. Securities arbitrators are knowledgeable in the field. Discovery is limited in arbitration and sanction very rare. Securities mediation can quickly resolve the dispute, reduce customer anger and provide for a non-monetary component.

Benefits of Mediation and Arbitration for Dispute Resolution in Trusts and Estates Law
January 2011: Mediation and arbitration, both of which are responsive to party needs in a way that is not possible in a court proceeding, are two of the most frequently utilized forms of dispute resolution. They have particular applicability in the field of Trusts and Estates, which by its very nature often involves family members and has significant emotional components.

Benefits of Alternative Dispute Resolution for Resolving Municipal Disputes
January 2011: When a dispute involves a municipality, the costs of resolving it will typically be borne by the taxpayers either directly through taxation, or indirectly through increased insurance premiums. No matter who ultimately prevails in the action, it is the taxpayer who pays. Arbitration and mediation can be used as an expeditious, more cost-effective means to remedy these disputes.

Introduction to Alternative Dispute Resolution for the LGBT Community 
January 2011: Mediation and arbitration have particular applicability in disputes involving the LGBT (Lesbian, Gay, Bisexual and Transgender) community, where confidentiality and discretion may be of particular interest to the parties and where courts may be insensitive or even hostile to parties. In LGBT family issues there is a dearth of applicable law and traditional family law can be inapplicable.

Insurance/Reinsurance Arbitration and Mediation 
January 2011: Where insurers and re-insurers find themselves consistently involved in matters that are heading towards or involved in litigation, it is no surprise that the industry currently makes extensive use of a variety of dispute resolution processes.

Mediation to Resolve Workplace Disputes: A User's Guide
January 2011: Any lawyer asked to handle an employment dispute – whether on the plaintiff’s side or employer’s side –should consider the alternative of mediation and should also be aware of the possible existence of an agreement requiring mediation or arbitration of a particular dispute.

Successful Resolution of Co-op, Condo and Homeowners Association Disputes
December 2010: Mediation and arbitration, both of which are responsive to party needs in a way that is not possible in a court proceeding, are two of the most frequently utilized forms of dispute resolution. They have particular applicability in the field of Cooperatives and Condominiums since the process may result in preserving relationships and enhancing a sense of community among neighbors.

Benefits of Mediation and Arbitration for Dispute Resolution in Entertainment Law
January 2011: Litigation requires a huge investment of time and money for an uncertain verdict. Clients in the entertainment industry must also risk irreparable damage to their reputation. Mediation and arbitration have particular applicability in the field of entertainment law.

Benefits of Mediation and Arbitration for Dispute Resolution in Health Care
January 2011: Healthcare providers, insurers and suppliers rely to a large extent on professional relationships to fulfill their Missions and advance their business models. When disputes arise, preservation of the underlying relationship is often critical to the parties. Arbitration has become very common in the resolution of commercial disputes and is routinely incorporated into such contracts as a method of choice for resolving disputes.

Benefits of Mediation for Dispute Resolution in Elder Law
January 2011: Mediation has particular applicability in the field of Elder Law, specifically, mediating end of life issues; mediating guardianship disputes; mediating elder care issues between children/siblings of the parent and getting the elder person’s voice heard.

Benefits of Arbitration and Mediation for Dispute Resolution in Intellectual Property Law
January 2011: Mediation and arbitration are no longer alternative dispute resolution (ADR) mechanisms, but have become common in the resolution of commercial and non commercial disputes between business entities and/or individuals. Mediation and arbitration are routinely incorporated into contracts as the methods of choice for resolving disputes that may arise in the future and are also routinely used after problems arise and the parties are seeking a means to resolve their disputes.


Guides and Notable Section Brochures  

Choose New York for International Arbitration Brochure
This brochure explains the benefits as choosing New York as the venue for International Arbitration.

Guidelines for the Arbitrator’s Conduct of the Pre-Hearing Phase of Domestic Commercial Arbitrations And Guidelines for the Arbitrator’s Conduct of the Pre-Hearing Phase of International Arbitrations
Guidelines for The Arbitrator’s Conduct of the Pre-Hearing Phase of: (i) domestic commercial arbitrations, and (ii) international arbitrations. The Domestic Guidelines were unanimously approved by Executive Committee and House of Delegates of the New York State Bar Association (“NYSBA”) in April 2009, and the International Guidelines were similarly approved in
November 2010. The Guidelines were developed by NYSBA’s Dispute Resolution Section Arbitration Committee.