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November 2022
Welcome to readers of Making the Connection
In this issue, you will find: 
  • In Focus : The Arbitration Paradox Revisited
  • Question of the Month, sharing a response to last month's question
  • Case on Point, discussing whether attorney's fees may be recovered under an indemnification provision
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus

The Arbitration Paradox Revisited

Arbitration is intended to be a fair and expeditious process for the resolution of disputes between parties who have contracted to its use.  In our 2015 article entitled Overcoming the Arbitration Paradox: Toward a More Collaborative Approach to Commercial Arbitration, my co-author Michele Riley and I observed that many parties who have chosen to arbitrate nevertheless engage in adversarial and obstructive tactics which frustrate this essential goal. We suggested that "the 2013 amendments to the AAA Commercial Arbitration and Mediation Rules permit arbitrators to adopt a more collaborative approach to making procedural determinations in arbitration" by soliciting party input on how best to achieve a fair and expeditious process.
While a collaborative approach is often effective in obtaining party buy-in and input in designing such a process, the arbitration paradox persists. Some attorneys and parties employ counterproductive and disruptive tactics, such as asserting duplicative, frivolous or baseless claims or contentions, failing to comply with arbitrator scheduling or discovery orders, or filing excessive discovery requests or motions. The American Arbitration Association's recent amendments to the Commercial Arbitration Rules, effective September 1, 2022, further empower arbitrators to overcome it. Key provisions of these revisions include:
  • Prohibiting such tactics and mandating civility through incorporation by reference of the Standards of Conduct for Parties and Representatives;
  •  A new rule authorizing consolidation of related cases or joinder of other affected parties to enhance efficiencyand reduce the risk of duplicative proceedings and inconsistent results;and
  • Allowing arbitrators to order the use of videoconferencing platforms to conduct and record hearings to reduce costs.

Question of the Month
Last month, I posed the following question to my readers:
Q: When have you used mediation skills effectively at work to achieve consensus or resolve conflict, or observed others doing so?

A: My son, Jeremy Pomerantz, responded as follows:
I remember a specific example when I took over an account.  The customer was unhappy  about a timeline and the prospect of having to pay for additional services.  My company was unhappy because they thought the customer was not being honest about what had been discussed.  I brokered a discussion with key stakeholders on both sides and actually listened to what the customer team had to say.  It turns out that there was an interpretation of events that was mutually consistent with both sides' stories and didn't involve painting either side as the guilty party.  Once both teams felt they had been listened to, money and timing fell into place.  The key was to establish trust and get both sides to see that we are on the same team trying to tackle a problem together.

Case On Point
In this month's case, the court interprets an indemnity agreement.
Sage Systems, Inc. v. Liss
(N.Y. Ct. of App. 2022)

The parties entered into a partnership agreement obligating partners to defend the partnership and other partners from "any and all claims, demands, liabilities, costs, damages, expenses and causes of action of any nature" arising from partner actions taken outside the scope of their authority, in bad faith, fraudulent or otherwise wrongful.  Plaintiff took the position that the indemnity clause include attorneys fees incurred in defending an unsuccessful dissolution action brought by defendant.  The Court of Appeals disagreed, noting that the American rule is that parties bear  the cost of their own attorneys fees absent an "unmistakeably clear" provision allowing the prevailing party to recover them. I often recommend such clauses to my clients to incentivize contract compliance and deter frivolous claims or defenses.

At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances. At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at    
  • On November 17, I will speak on Conflict Resolution Basics to participants in United Way's Youthbuild program.
  • Please join me at the November 18, 2022 Moxxie Network lunch at Hotel Indigo in Riverhead where i will speak on Cross-Cultural Communications. Click here for information and reservations.
  • I look forward to attending and presenting at the International Mediation Symposium from May 18-21, 2023,  sponsored by the Center for International Legal Studies in Salzburg, Austria. 
Client Corner
Client Corner features client announcements and events of potential interest to readers.  Some Client Corner events are also listed on the calendar page of my website.    

  • As mentioned above, I will speak at the November 18, 2022 Moxxie Network lunch in Riverhead.

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