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Is Three A Crowd?: Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations, Sean-Patrick Wilson, David J. Mclean
Is Three A Crowd?: Neutrality, Partiality And Partisanship In The Context Of Tripartite Arbitrations, Sean-Patrick Wilson, David J. Mclean
Sean-Patrick Wilson
Despite the widespread usage of party-appointed tripartite arbitration, for some time there has been confusion and concern among academics, courts, parties and arbitrators about the proper role of neutrality in tripartite structure. For example, is it legally permissible for party-appointed arbitrators to be partial? What difference, if any, exists between terms such as “partial,” “partisan” and “non-neutral”? How do we reconcile the Federal Arbitration Act’s ban on “evident partiality” with the concept of having non-neutral arbitrators? Unfortunately, neither Congress nor the Supreme Court has delineated fully the concept of neutrality of party-appointed arbitrators, and the case law among the circuit …
Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean
Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean
Sean-Patrick Wilson
The recent case of Advanced Bodycare v. Thione, 07-12309, 2008 U.S. App. LEXIS 8584 (11th Cir. Apr. 21, 2008) invited the Eleventh Circuit to explore which types of ADR are considered “arbitration” for purpose of the Federal Arbitration Act, 9 U.S.C. § 1 (“FAA”). According to the Eleventh Circuit, an agreement to mediate, as well as an agreement to either mediate or arbitrate, falls outside of the FAA’s scope, making the FAA’s remedies unavailing to parties wishing to use its provisions to stay litigation or to compel a single agreement which requires the parties to either mediate or arbitrate. The …