Amicus Brief Opportunity for ADR Scholars and Practitioners

I would like to invite you to review and sign an amicus brief in the important arbitration case of Amicus ADR Training, No. 12-1429.  This case is currently before the Supreme Court on a petition for certiorari.  The case deals with the definition of “arbitration” under the Federal Arbitration Act.  Specifically, the case involves whether certain third party valuations constitute “arbitration” under theFAA.

The facts of the case involve a claim for insurance benefits under a Lloyd’s of London policy.  The contract between the parties had a procedure under which an independent third party physician would make a “final and binding” determination as to whether Bakoss was “totally disabled.”  The case concerns whether this procedure constitutes “arbitration” under the FAA.

In Bakoss, the Second Circuit concluded that it was, using a settlement-based definition of arbitration focused on likelihood the process would resolve the dispute, rather than examining the salient features of the process, such as the availability of a hearing, the presentation of evidence, and an arbitration award. 707 F.3d 140, 143 (2d Cir. 2013).

A small group of scholars, led by Liz Tippett of Oregon, drafted an amicus brief arguing that the process-based definition (known as the “classic arbitration” standard) adopted by the First, Sixth and Eleventh Circuits, is more functional and closer to Congressional intent than the settlement-based definition adopted by the Second Circuit. The brief also argues that the broader settlement-based definition would have a devastating effect on dispute resolution as a whole, sweeping into the purview of the FAA other dispute resolution procedures aimed at “settlement.”

Amicus’ corporate mission is to assist insurance companies, law firms, corporations and other entities significantly reduce their legal costs by elevating their ADR usage.

The Amicus system uses a three pronged approach when developing ADR systems for its clients.

1. Creating/implementing systems and processes for clients where cases are being regularly identified for ADR.
2. Maximize buy-in from opposing counsel on each file to ensure that each identified case proceeds seamlessly to an ADR conference.
3. Managing the quality of the ADR result by directing cases to the most effective mediators and arbitrators.