New York Lawyers Practical Skills Series Includes Forms on CD Arbitration and Mediation Professor Leona Beane Joseph DiBenedetto, Esq. 2015 2016 NEW YORK STATE BAR ASSOCIATION
PART ONE: ARBITRATION CONTENTS Joseph DiBenedetto, Esq. I. Introduction... 1 II. Arbitration Agreement... 1 A. Basic Agreement... 1 B. Choice/Conflict-of-Law Issues... 3 C. Selection of the Arbitrator... 4 III. Enforceability of Arbitration Agreements... 5 A. Punitive Damages... 7 B. Fraud or Duress... 8 C. Waiver... 8 D. Statute of Limitations... 9 E. Class Action Arbitration... 10 IV. Arbitration Procedure... 11 A. Service of Notice... 11 B. Right to Seek Stay... 12 V. Application for Stay... 14 A. Grounds and Procedure... 14 B. Venue and Consolidation... 15 VI. Hearing Procedures... 16 A. Rights of Parties... 16 B. Powers of the Arbitrator... 19 VII. Procedure After Decision Is Rendered... 21 A. Modification of Award by Arbitrator... 21 B. Vacating or Modifying Award by the Court... 22 C. Confirmation of the Award... 28 VIII. Judgment on the Award... 29 IX. Attorney-Client Fee Disputes... 30 A. Amendment of Documents... 30 B. Procedure... 30 C. Arbitration Hearings... 31 D. De Novo Review... 31 Arbitration Forms Index... 35 PART TWO: MEDIATION Professor Leona Beane I. Introduction... 63 A. Alternative Dispute Resolution... 64 B. Benefits of Mediation... 64 C. Historical Uses of Mediation... 66 D. Developing Uses of Mediation in the United States... 66 E. The Different Types of Mediation... 68 iii
II. Current Uses of Mediation to Resolve Disputes... 69 A. The Courts... 70 1. The Federal Courts... 70 2. The Commercial Division in New York State... 70 3. Other Court Programs in New York State... 72 4. Necessity of Good Faith... 72 B. Administrative Agencies... 74 C. Community Dispute Resolution Centers... 74 D. Attorney Fee Disputes... 75 E. Role of Bar Associations and ADR Organizations in the Expanded Interest and Use of Mediation... 75 III. The Mediation... 77 A. Agreement Between the Mediator and the Parties and Attorneys... 77 B. The Mediation Process What Happens In Advance... 78 1. Disclosure by the Mediator... 78 2. Pre-Mediation Telephone Conference Call... 78 3. Facilitating Needed Discovery... 78 4. Confidential Mediation Statement... 78 C. The Mediation Process Getting Started... 79 1. Can or Should There Be Witnesses at the Mediation?... 79 2. Fact Witness... 80 3. Support Witness... 80 4. Expert Witness... 80 D. The Beginning of the Mediation Session... 80 E. Hearing From Both Sides... 81 F. The Caucus... 82 G. After a Caucus With Both Sides... 83 H. Some Mediator Techniques... 83 1. Restating, Reframing and Summarizing... 83 2. BATNA and WATNA... 83 3. Reality Testing... 84 4. Interests or Positions... 84 5. Non-Monetary Interests... 85 6. The Mediator s Proposal... 85 I. Dealing With Impasse... 86 J. Needing Additional Information... 87 K. Additional Mediation Sessions... 87 L. Settlement Agreement... 88 IV. Confidentiality and Ethics... 89 A. Confidentiality... 89 B. Uniform Mediation Act (U.M.A.)... 91 C. The Mediator Is Not a Legal Advisor... 92 D. Ethical Concerns... 92 V. Mediation Provisions in Agreements... 94 VI. Conclusion... 95 iv
Appendix A Model Standards of Conduct for Mediators... 97 Appendix B Model Standards of Practice for Family and Divorce Mediation... 107 Appendix C Rules of the Chief Administrative Judge, Part 146... 119 Appendix D Stipulation and Agreement Confidentiality (Eastern District)... 121 Appendix E Mediation Confidentiality Agreement (Southern District)... 123 Appendix F CPLR 4547. Compromise and Offers to Compromise... 125 Appendix G USCS Fed Rules Evid R. 408. Compromise and Offers to Compromise... 127 Appendix H Legislation Proposing Uniform Mediation Act... 129 Table of Authorities... 137 About the Authors... 149 v
INDEX OF FORMS* Demand for Arbitration Before the American Arbitration Association... 37 Demand for Arbitration Pursuant to the Construction Industry Arbitration Rules... 38 Notice of Petition to Compel Arbitration... 39 Petition to Compel Arbitration... 41 Notice of Motion to Stay Action and Compel Arbitration... 43 Supporting Affidavit on Notice to Stay Action and Compel Arbitration... 45 Notice of Motion to Compel Arbitration Pursuant to New York Stock Exchange Rules... 47 Supporting Affidavit on Motion to Compel Arbitration Pursuant to New York Stock Exchange Rules... 49 Notice of Motion to Stay Arbitration... 51 Affirmation in Support of Motion to Stay Arbitration... 53 Disposition of Application for Modification of Arbitration Award... 55 Notice of Motion to Confirm Arbitration Award... 56 Affidavit in Support of Motion to Confirm Arbitration Award... 57 Notice of Motion to Dismiss or Stay the Action Pending Arbitration... 59 * Two of the forms contained in this Part One are omitted from the forms CD accompanying this publication because they are obtainable from The American Arbitration Association at www.adr.org.
ABOUT THE AUTHORS 149 PROFESSOR LEONA BEANE Leona Beane is Professor Emeritus of Law at Baruch College (City University) in New York City, where she taught for 21 years. Professor Beane received her B.B.A. and M.B.A. from the City College of New York, M.S. from Columbia University and J.D. from New York Law School. She has been a practicing attorney involved in estates, guardians and A.D.R., and is an active member of several bar associations. She has chaired and/or lectured at several programs over the years for the New York State Bar Association: Drafting Corporate Documents for the Close Corporation, Forming and Advising Businesses and others. She chaired and lectured at programs on guardians and Article 81 of the Mental Hygiene Law, having lectured in different parts of the state for several different Bar Associations. In 1998 and 1999, Ms. Beane lectured at several judicial seminars on guardianship topics, at the Judicial Institute in April 2003, and the Guardianship Roundtable in May 2011. She serves on the Board of Advisors to the Vera Guardianship Project and assisted in the initial training of its staff. She is a past president of both the National Association of Women Lawyers and the Association of Small Claim Arbitrators, and is an arbitrator and mediator for the U.S. District Court, Eastern and Southern Districts. She is also an arbitrator for the Financial Industry Regulatory Agency (FINRA). She is a mediator in the Commercial Division of the Supreme Court, New York County; the Bankruptcy Court, Eastern and Southern Districts; the EEOC and Safe Horizon, in addition to several other forums. She is also a Mediator/Special Master in the Appellate Division. She had been Chair of the Arbitration and ADR Committee of the New York County Lawyers Association for four years. She was Vice-Chair of the Dispute Resolution Section of the New York State Bar Association for two years; she continues to serve on its Executive Committee, and is chair of its Subcommittee on Mediating Trusts, Estates, Guardianships and the Elderly. She is a member of the New York chapter of the National Academy of Distinguished Neutrals. She has published several articles on various legal topics, including partnership law, contracts, guardians, guardians ad litem and mediation relating to estate matters and guardianship. She also is a chapter author and an Associate Editor of Guardianship Practice in New York State (NYSBA 1998). In recent years she has been devoting more of her practice to ADR matters. In 2012 and 2014, she organized CLE programs on The Basics of Mediating Trusts and Estates Disputes for the NYSBA. JOSEPH DIBENEDETTO, ESQ. Mr. DiBenedetto is a partner in the New York City law firm of Winston & Strawn. He graduated from St. John s University School of Law in 1970, and was managing editor of its Law Review (1969 1970). Mr. DiBenedetto is a member of several national, state and local bar associations, and is a member of various committees of the American Bar Association and the New York State Bar Association. In addition, he has lectured on civil practice for various associations. He focuses on commercial, corporate and securities litigation, and has published various articles relating to those areas of his practice.