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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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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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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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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