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Nysba Spring 2019 | Vol NYSBA SPRING 2019 | VOL. 12 | NO. 1 New York Dispute Resolution Lawyer A publication of the Dispute Resolution Section of the New York State Bar Association In This Issue n ADR in the Age of Cybersecurity n Everyone Can Be a Winner n Risky Business: The Consequences in Baseball Arbitration of Counting on Liability Alone n The Prague Rules n Publicity for Diversity in ADR n Updates from the Institutions ... and more NEW YORK STATE BAR ASSOCIATION DISPUTE RESOLUTION SECTION Section Chair: Deborah Masucci, Esq. Program Chairs: Hon. Marilyn K. Genoa Jess Bunshaft, Esq. 16.0 MCLE Credits 4.0 Areas of Professional Practice, 10.0 Skills, 2.0 Ethics Advanced Commercial Mediation Training 8:00 a.m. – 5:00 p.m. Friday, April 12 and Monday, April 15, 2019 Co-sponsored by the Dispute Resolution Section, the Continuing Legal Education Committee, and the Nassau County Bar Association Nassau County Bar Association 15th & West Streets Mineola, NY 11501 www.nysba.org/AdvancedCommercialMediationTraining2019 Table of Contents DISPUTE RESOLUTION SECTION Page Message from the Chair ..............................................................................................................................................4 (Deborah Masucci) Message from the Co-Editors in Chief .....................................................................................................................6 (Edna Sussman, Laura A. Kaster and Sherman Kahn) Ethical Compass The Changed BATNA ..................................................................................................................................................7 (Professor Elayne E. Greenberg) Arbitration Dealing With Experts and Expert Evidence in Commercial Arbitration ..........................................................10 (Stephen P. Gilbert) ADR in the Age of Cybersecurity ...........................................................................................................................14 (Steven A. Certilman and Eric W. Wiechmann) The ICCA-ASIL Task Force on Damages Creates a New Interactive Web App for Damages .......................20 (Catherine Amirfar, Gabrielle Nater-Bass, Stefanie Pfisterer and Aasiya Glover) California—A Rising Star Among International Arbitration Seats ....................................................................23 (Gary Benton and Katalin Meier) Publicity for Diversity in the ADR World ..............................................................................................................27 (Laura A. Kaster) Everyone Can Be a Winner in Baseball Arbitration: History and Practical Guidance ....................................28 (Edna Sussman and Erin Gleason) Risky Business: the Consequences of Counting on Liability Alone ..................................................................33 (Greig Taylor and Alexander Lee) Mediation Notes From the Field: Has #MeToo Changed ADR? ............................................................................................37 (Abigail Pessen) Moving Mediation Practice Forward—Is It Time for Certification? ..................................................................40 (Deborah Masucci) International How to Productively Conduct a Case Management Conference – Well Begun Is Half Done .....................43 (Cecilia Carrara) The Prague Rules and the Myth of a Civil Law Panacea ....................................................................................46 (Ferdinando Emanuele, Carlo Santoro, Ari D. MacKinnon, and Zachary S. O’Dell) The Prague Rules: A Regression or a Step Toward More Efficiency? ................................................................51 (Duarte G. Henriques) Updates from the Institutions A Comparative Overview of the 2018 HKIAC-Administered Arbitration Rules ............................................55 (Sarah Grimmer and Joe Liu) Recent Innovations from the ICC Court .................................................................................................................59 (Marek Krasula and Mary Kate Wagner) Modernizing ICSID’s Dispute Settlement Rules ...................................................................................................62 (Meg Kinnear) The Future Is Now: New 2019 CPR Arbitration Rules Incorporate Best Practices for Fast and Efficient Administered Arbitrations .............................................................................................64 (Olivier P. André and Kenneth B. Reisenfeld) NYSBA New York Dispute Resolution Lawyer | Spring 2019 | Vol. 12 | No. 1 3 Message from the Chair Why do parties seek to Roosevelt. Herbert Hoover and Calvin Coolidge can be resolve disputes through credited with the passage of the Federal Arbitration Act.3 alternatives to the court system? For those of us Is arbitration perfect justice—no, it is not, but it is a who have worked in the way to meet clients’ goals for dispute management and alternative dispute resolu- resolution. Is it the right process for every dispute? Again, tion field, the reasons roll the answer is no and for that reason, we have seen a rise off our tongues. Parties in the use of mediation. seek a more efficient, less While arbitration is not perfect justice, some of the costly method to resolve criticism we hear is directed toward specific issues and disputes and, if they use sometimes in specific types of disputes. In the era of the arbitration, often select “#MeToo movement” confidentiality within the arbitra- persons knowledgeable in tion process is being criticized. But how confidential is the subject matter of the arbitration? Under most domestic arbitration rules, only dispute. the forum and the arbitrators are required by the rules to The last half of 2018 brought renewed attacks on the maintain the confidentiality of arbitration proceedings. arbitration process. To be precise, the attacks are on the Absent an agreement or order of the tribunal, the parties practice of including arbitration as a required process in may speak about the proceedings outside the hearings pre-dispute agreements primarily in the consumer and and may also talk to the press—but do they want to? employment context. The attacks are distressing, espe- The American Arbitration Association (AAA) pub- cially when they are based on misunderstandings about lishes all employment arbitration awards through West- the process. law. The names of the parties are visible unless there is a “A more recent attack on arbitration in general is the dearth of minorities and women on the rosters of arbitrators.” The inclusion of pre-dispute arbitration clauses in agreements has a long history in the United States. Presi- request for redaction. So there is a way to find out about dent George Washington included such a clause in his similar cases. Commonly, settlement agreements (even in last will and testament. In his will, he expresses his hope court proceedings) contain non-disclosure clauses. Yes, that he was clear enough with his direction that there this protects the perpetrator of harassment if that is the would not be any disputes over his bequests; however, issue at bar, but it also protects the victim. Does a victim in case a dispute arises, he provided that “all disputes (if of harassment really want to be subjected to the publicity about the settlement and the circumstances leading to the unhappily any should arise) shall be decided by three im- partial and intelligent men, known for their probity and settlement? Another twist is the passage of statutes and good understanding.”1 regulations that eliminate any tax benefits for settlements relating to sexual harassment when a non-disclosure Fast forward 100 years and we note that before Abra- clause is incorporated into a settlement agreement4—a ham Lincoln became President, he had a vibrant practice trap if the lawyers negotiating the agreement are unaware as an attorney and he actively advocated using alterna- of the different state and local statutes and regulations. tive dispute resolution processes to resolve disputes. He regularly used binding arbitration to achieve client goals. A more recent attack on arbitration in general is the He also used his personal experiences when he served dearth of minorities and women on the rosters of arbitra- as an arbitrator to reduce costs and time for disputing tors. In the beginning of this column I highlighted that parties.2 President Washington elected to have “men” appointed to arbitrate any disputes under his will. Unlike in the days Other Presidents supported using arbitration for a when our nation was born, today’s disputants and their wide range of both domestic and international disputes lawyers are diverse and arbitration does serve as a sub- including Presidents Ulysses Grant, Grover Cleveland, stitute for public processes. Accordingly, the rosters from Theodore Roosevelt, Herbert Hoover, Calvin Coolidge, which disputants select arbitrators should be diverse. Woodrow Wilson, William Howard Taft, and Franklin 4 NYSBA New York Dispute Resolution Lawyer | Spring 2019 | Vol. 12 | No. 1 All alternative dispute resolution providers have tion Section will support and act to open the doors wider made strides to increase the number of women and to encourage the selection of women and minorities. Look minorities on their rosters. The AAA has been a leader for our “Guide for Establishing an Alternative Dispute through their Higginbotham Fellows Program. The AAA Resolution Practice” and our “Report on Women and Mi- roster is comprised of 24 percent women and minorities.5 norities in
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