We came across an interesting new book on negotiations, Lawyering with Planned Early Negotiations: How You Can Get Good Results for Clients and Make Money, by John Lande, Professor and Director of the LLM Program in Dispute Resolution at the University of Missouri School of Law. Here is the book description: Whether you’re a solo practitioner or in a mid- to large-sized firm, you negotiate often in your career. This guide discusses how you can be more successful using Planned Early Negotiations. The strategies in this book can help you become a more effective negotiator, which can increase your professional satisfaction, generate good will, relieve stress, and increase your effective billing rates with creative fee arrangements. This book is not only about negotiation — it outlines a general approach to practicing law. This book will help you: Build strong relationships with your clients Choose billing systems that maximize both your interests and your clients’ interests Develop effective working relationships with the other side and minimize unnecessary conflict Increase your confidence when you negotiate Manage problems that commonly arise in negotiation Use experts and other professionals effectively Improve your negotiation skills throughout your career More information is here. Technorati Tags: law, ADR, arbitration

By Brett Goodman Similar to a court referring a case to mediation in the first place, in Texas, a trial court is under a discretionary standard concerning imposing sanctions for failure to appear. See Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App. 2000). Discretion is abused when the trial court acts without reference to any guiding rules or principles. See Johnson v.. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). Courts have an inherent power to use sanctions to discipline attorneys when appropriate. See Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex.App.—Houston [1st Dist.] 1993, no writ). The appropriateness of this power or whether an imposition of sanctions is just is analyzed on two-prongs: A direct relationship existing between the offensive conduct and the sanction; and Determining whether the party, the attorney, or both are responsible for the offensive conduct. See Wetherholt v. Mercado Mexico Cafe, 844 S.W.2d 806, 808 (Tex.App.—Eastland 1992, no writ) (emphasis in original) In addition, sanctions may not be excessive and should only be exercised to the extent of satisfying their initial purpose, usually of discouraging further abuse. Using the two-pronged analysis, Texas has upheld sanctions in that the “punishment fits the crime.” In a corporate suit between a company president and two people alleged of misuse of company funds among other unprofessional behavior, the court first found bad faith on part of the company president Luxenberg in his “callous disregard” of the mediation process. The court found a direct relationship between Luxenberg’s pleadings and the sanction against him, and he was found to be the only possible responsible party. Concerning the excessiveness of the sanctions, the court found the order not to be severe in that several lesser orders were given to Luxenberg without response. See Luxenberg v. Marshall, 835 S.W.2d 136, 141 (Tex.App.—Dallas 1992, no writ) Courts have also upheld sanctions imposed pursuant to the broad power to sanction. In a suit against several attorneys who were found to have violated local rules of Nueces County concerning random assignment of cases, the judge imposed $10,000 sanctions to each attorney. Recognizing the “inherent power” of a court to sanction, the Supreme Court of Texas found that the lower court had no overstepped its bounds. This power is not unlimited, however, and constitutional considerations of due process must be kept in mind. However, the Court found no due process violation because the attorneys were fully aware of the local system and intentionally tried to avoid it. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997). More recently, courts have furthered the broad power of trial courts to impose sanctions for failing to appear at court-ordered mediation. In a 2000 suit over an unpaid debt, the court again found the sanction appropriate under the two-pronged analysis. See Roberts, 37 S.W.3d at 33. Taking the second prong first, the court found only attorney Roberts to be responsible for the party missing mediation, because all other evidence demonstrated an eager client who followed all advice of his attorney but was not informed of the mediation. The court did not make mention of the direct relationship prong, establishing that it is very difficult to defeat a sanction on this basis, thereby furthering the broad discretionary power of trial courts. Finally, the court ruled that the sanction was not excessive in that they were not outrageous and would prevent further attorney abuse, so the court was also very deferential to the trial court in terms of the appropriate level of sanction. In the same year, the court took the “inherent powers” a step further in that these powers are a threshold for considering the two-pronged analysis. The court wrote, “[b]ecause we overrule appellant’s first issue on the basis that the trial court did not abuse the discretion it has pursuant to its inherent powers, we need not and do not address whether the sanctions imposed would have been appropriate.” Garcia v. Mireles, 14 S.W.3d 839, 843 (Tex. App. 2000). In 2006, a Texas court reinforced the power of the trial court and gave their decision a high presumption of validity. Although the court recognized the aforementioned pronged tests and need for sanctions to not be severe, there were no cites to the record that the trial court abused its discretion, so the trial court’s decision was assumed to be legitimate. Bostow v. Bank of Am., 14-04-00256-CV, 2006 WL 89446 (Tex. App. Jan. 17, 2006). Though it does not seem to be commonplace, a sanction that is deemed too severe will be overruled. . In conjunction with the severity, a court “must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance.” Because the trial court did not make any such considerations and immediately imposed the most devastating sanction possible, that sanction was deemed too severe and could not be imposed. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) Also seemingly rare, there have been cases when the trial court was deemed to be not acting pursuant to its discretion because it did not act in relation to the appropriate guiding rules. See In re Magallon, 09-07-438CV, 2007 WL 2962934 (Tex. App. Oct. 11, 2007). Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.

by Michael McIlwrath Earlier this year, Italian lawyers went on strike to protest the country’s introduction of a law imposing a requirement to attempt settlement through mediation as a precondition to proceeding to litigate in court. Perhaps not wanting to be outdone by their European brethren, the Association of Indian Lawyers (AIL) has filed suit in the High Court of Delhi to thwart an innovate effort to provide parties with an alternative to a famously inefficient legal system. Some background: in April 2009, the London Court of International Arbitration (the LCIA), a leading provider of international arbitration services, opened a subsidiary office in Delhi. Called LCIA India it is today in full operation, complete with its own set of India Arbitration Rules. As explained on the organization’s website, LCIA India purports to offer, “all the services offered by the LCIA in the UK, and with the same care to ensure the expeditious, cost effective and totally neutral administration of arbitration and other forms of ADR conducted under its auspices, whether according to LCIA India’s own rules, or the UNCITRAL rules, or any other procedures agreed by the parties.” In other words, the same services widely available from a variety of providers in any modern economy. This, apparently, was too much for the AIL, which petitioned the High Court of Delhi for an order removing “London Court” from the LCIA’s name, and which the High Court instructed should be notified to all concerned parties on May 31, 2011. On the surface, the petition appears to lament that the LCIA is attempting, “to create a parallel system of administration of law in defiance to the prevailing judicial system in India.” As with the Italian lawyers strike, the invocation of what might be viewed as public interest is at most superficial. It’s the fear of losing the ability to hold clients captive to judicial inefficiency that is the real driver, as well as the fear that new forms of dispute resolution might also inject competition for legal services. India currently prohibits foreign lawyers from practicing (you’ll find none of the large firms listing offices in Delhi or Mumbai), and the AIL’s petition openly lays out the concern that the LCIA, “is trying to circumvent the law by allowing foreign legal practitioners to provide professional legal services in the grab of conducting arbitration.” The LCIA is not the only institution feeling heat from those with vested interests in keeping litigants captive of slow justice dispensed exclusively by local practitioners. For this post, I touched base with Anil Xavier, the President of the Indian Institute of Arbitration & Mediation www.arbitrationindia.org, based in Bangalore/Cochin. Anil has been working to promote institutional arbitration and mediation in India. He calls the AIL’s allegation “absurd” and fears that India’s domestic bar will continue to undermine any effort to provide alternatives to local, ad hoc arbitration and court litigation. He calls the petition, “just another example that international or domestic arbitration have still not escaped the clutches of the majority of the Indian lawyers, who have not accepted arbitration or ADR as a main area of practice. The fact that more international arbitral institutions are coming to India, however, is an expression not just of a jurisprudential need, but a requirement for smooth business and commercial operations.” In fact, the irony of the AIL’s protest is that it so fundamentally misunderstands what LCIA India is attempting to accomplish, or why both the Minister of Law and Justice and the Chief Justice of India attended its opening in April 2009. As an international institution, the LCIA knows well that few non-Indian commercial parties will agree to have their disputes resolved in India. The LCIA initiative of creating an Indian subsidiary would ultimately keep work in India that today goes elsewhere, and foster closer ties between Indian and foreign companies. Instead of insisting on say, arbitration in Singapore or London, international companies might actually be convinced to one day accept arbitration in Delhi. That’s not the way it is today, at least when non-Indian parties believe they have other options, which they almost always do. Still, this may not be bad news for international dispute resolution in India or the LCIA, at least for now. While the striking Italian lawyers chose a method of protest that had an immediate impact, the AIL has chosen a different forum…. the Indian courts. According to one authority (Justice V.V. Rao), it will take until the year 2330 for the country’s courts to clear their existing backlog at the current pace of deciding cases, although most are decided in under 15 years (before appeals). If the AIL had wanted an earlier resolution, they might have considered mediating or arbitrating instead…. MICHAEL MCILWRATH is Senior Counsel, Litigation, for the GE Oil & Gas Division in Florence, Italy. His experience in international arbitration includes representing the company in disputes under the rules of various international and regional arbitration institutions and under ad hoc procedures around the world, and in coordinating the activities of outside counsel in domestic court and arbitral proceedings. He has published numerous articles in the fields of international arbitration, mediation, and negotiation, and is co-author, with John Savage, of International Arbitration and Mediation: A Practical Guide (Kluwer Law International). Michael is a member of the European Advisory Committee of CPR, and acted as an industry representative to the European Commission (Justice) in the creation of a European ADR Code of Conduct. He was Chair of the International Mediation Institute (IMI), in 2009. In addition, he was the co-vice chair with mediator Judith Meyer (and chair, Singapore ambassador at large Tommy Koh) of the IMI Independent Standards Committee. He is also a member of the board of directors of the National Center for Science Education, in Oakland, California.

The Texas Fourteenth Court of Appeals affirmed the trial court’s denial of confirmation of an arbitral award. In AMOCO D.T. Co.v. Occidental Petroleum Corp., NO. 14-09-00651-CV, (Tex. App.–Houston [14th Dist.] May 17, 2011, Amoco D.T. Company (“Amoco”) and Shell Land & Energy Company (“Shell”) entered into a purchase-and-sale agreement with Occidental Petroleum Corporation (“Oxy”). Pursuant to the agreement, Oxy made a demand for arbitration to resolve a contract dispute, and the case was submitted to arbitration under the Federal Arbitration Act (“FAA”). The arbitration panel was comprised of Shannon Ratliff (selected by Oxy), Thomas McDade (selected by Shell), and George Chapman (selected by Ratliff and McDade). During the course of the pre-arbitration proceedings, McDade left his law firm, McDade & Fogler, and became “of counsel” with the firm of Beck, Redden, & Secrest, L.L.P. (“Beck Redden”). In a two-to-one decision, the arbitration panel ruled for Shell. Subsequently, Oxy discovered undisclosed information pertaining McDade’s and Beck Redden’s relationships with Shell. Shell filed suit in district court to confirm the arbitral award. On the other hand, Oxy moved to vacate the award based on the arbitrator’s evident partiality. The trial court determined the evidence established evident partiality and vacated the arbitration award. Shell now appeals. The court of appeals first cited the U.S. Supreme Court’s evident-partiality decision, Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968). In Commonwealth Coatings, the court said, a supposedly neutral arbitrator failed to disclose that one of the parties to the arbitration was a regular customer of his engineering-consulting services, including on the projects underlying the parties’ dispute. The court then cited Justice Black: It is true that arbitrators cannot sever all their ties with the business world, since they are not expected to get all their income from their work deciding cases, but we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts and are not subject to appellate review. We can perceive no way in which the effectiveness of the arbitration process will be hampered by the simple requirement that arbitrators disclose to the parties any dealings that might create an impression of possible bias. Next, the court mentioned Burlington N. R.R. Co. v. TUCO, Inc., 960 S.W.2d 629, 632 (Tex.1997) decided by Texas Supreme Court. Tuco dealt with an arbitration award for evident partiality under the Texas General Arbitration Act (“TAA”). In Tuco, the Texas Supreme Court clarified that standard for evident partiality should be the same under the FAA and the TAA. Thus, the court of appeals concluded that Tuco should be the standard under both, the FAA or TAA. Then, the court outlined the facts argued by Oxy in its motion for vacatur: (1) during the course of the arbitration, Beck Redden attorney David Gunn represented BP Products North America, Inc. (“BP Products”), a BP Amoco p.l.c. subsidiary, in mandamus proceedings in Texas;(2) during the course of the arbitration, a Beck Redden attorney began representing several BP Amoco p.l.c. subsidiaries;(3) Beck Redden represented Shell Oil Company from 1994 to 1999; and (4) after the arbitration panel issued its award, Shell designated McDade as an arbitrator in unrelated matter. Finally, the court concluded that: McDade’s failure to disclose Beck Redden’s BP Products representation might, to an objective observer, create a reasonable impression of his partiality. See TUCO, 960 S.W.2d at 636. We recognize that evident partiality is generally proved by an arbitrator’s nondisclosure of his own potential conflicts, whereas here, McDade’s evident partiality was proved by his nondisclosure of his firm’s potential conflicts. Nevertheless, the fact that a reasonable person could conclude the circumstances might have affected McDade’s impartiality triggered his duty to disclose. See id. at 639. Thus, the fact that McDade failed to disclose non-trivial information was sufficient to establish evident partiality. Id. at 636. [Hat tip to our blog contributor Jim Gaitis.] Technorati Tags: law, ADR, arbitration