Columns
Laying the foundation for settlement with ex parte communications
February 06 ,2025
Ex Parte communications are commonplace and completely ethical in the
mediation process. Indeed, where “shuttle diplomacy” is the process
model all communication is ex parte. In this paper, I recommend
using ex parte communication with counsel prior to the date of mediation
but after receipt of written submissions. The call has multiple goals
and objectives including:
:
Sheldon J. Stark
Mediator and Arbitrator (Retired)
Mediator and Arbitrator (Retired)
Introduction
Ex Parte communications are commonplace and completely ethical in the mediation process. Indeed, where “shuttle diplomacy” is the process model all communication is ex parte. In this paper, I recommend using ex parte communication with counsel prior to the date of mediation but after receipt of written submissions. The call has multiple goals and objectives including:
• Cementing a prior relationship with counsel or building a relationship where none previously existed.
• Gathering important information not included in written submissions.
• Providing advocates an opportunity to speak candidly outside the presence of their clients.
• Demonstrating the mediator’s commitment to helping advocates achieve their client’s goals.
• Planting seeds for useful techniques to be used once the mediation begins.
• Reminding counsel to sign the Agreement to Mediate, have their clients do so, and return it to the mediator.
Establishing Confidentiality
The call should start with an explanation that this is a standard part of the mediator’s preparation; all counsel will be contacted; and it is traditional/customary to start with plaintiff counsel, unless time does not allow waiting until plaintiff counsel is available.
To encourage candor the mediator should first establish confidentiality ground rules for the conversation. If there is anything counsel wouldn’t want disclosed to the other side, they need only say so and the mediator will keep it under wraps. My practice was to place responsibility on counsel. Unless they expressly designated something confidential, I explain, I would consider it fair to use in the other room especially if I thought it might be helpful.
I would promise to provide an opportunity to place any other information disclosed in the confidential category before hanging up. Finally, if it later appeared disclosure might be helpful, I would explain my thinking; then live with whatever decision they made.
Gathering Information Through Questions
Once ground rules for confidentiality are established, I recommend soliciting suggestions from counsel for techniques or an approach the mediator might employ. Many advocates offer mediation services and could provide thoughtful insight. “You’ve been living with the dispute for some time,” I might begin. “Do you have any ideas for me? If you were mediating this case, what approach or techniques would you employ?” Most often they do not have suggestions. Advocates appreciate the question, and sometimes have helpful ideas.
My second topic seeks insight into the parties. “Tell me about your client,” I always asked. “Is there anything I can do to help you with your client? Is there a message you’ve been reluctant to deliver, for example, that I could do the heavy lifting on? Is there a message you have delivered but which could use some reinforcement from me?” Lawyers are often candid and frequently provided useful insight to guide management of the process.
I next asked about non-economic needs, demands or terms. “Have you discussed with your client their non-economic objectives?” Often, the answer is no. This call, therefore, gets that conversation started between counsel and party. This is important, because once a dollar negotiation starts, non-economic terms can become stumbling blocks to resolution. It’s generally best, therefore, to get these out on the table at the very beginning. In an employment dispute, for example, is plaintiff seeking a letter of recommendation? Does a party believe liquidated damages are needed to discourage disclosure of confidential terms? It is often easier to reach agreement on non-economic terms before addressing money.
If the dispute does not settle, I wanted to know counsel’s biggest concern. What are they most worried about? “What might keep you up at night? Are you worried about disclosure of proprietary business information, for example? Or public exposure of private or embarrassing internal conflicts or problems? Do you worry about dragging an important customer or client into the dispute?” Answers to these questions often bring out important risk topics to consider at the mediation table.
How are they getting along with the other side? Do the lawyers trust one another? Have personality conflicts aggravated the dispute or made settlement more difficult? What’s driving any hostility? Issues lurking beneath the surface – lawyers rubbing each other the wrong way, for example – can threaten progress if not identified early. And related: are there any other non-legal issues that might impact resolving this dispute the mediator should know about?
What do the advocates consider the biggest impediments to resolution? Do they have suggestions for neutralizing or ameliorating them, finessing or otherwise getting around them?
Whose turn is it to make the first move at the mediation table? I always ask whether the parties are willing to disclose the status of their negotiations during the joint pre-mediation conference call. The reason to ask with all lawyers present is that the parties do not agree in at least half the cases! Most lawyers believe that where there have been no pre-mediation negotiations, the plaintiff should make the first offer. Plaintiff brought the case and presumably knows what the dispute is worth.
Accordingly, plaintiff should start. Lawyers also believe that if one side made the last offer, the offeree should put the first number out at mediation. On occasion, a plaintiff lawyer may try to shift the first number burden onto the defense. I try to discourage that with the following points:
• Plaintiff going first is the natural order of things.
• If plaintiff tries forcing defendant to start, plaintiff’s counsel risks losing respect and credibility. And, regrettably, so does a mediator who goes along with the request.
• Defendants might disengage and leave the table.
• No plaintiff attorney in my experience has ever been happy with an opening offer where defendant was forced to go first.
• Finally, “anchoring” research suggests that the final settlement number is generally closer to the first number offered in a negotiation than to the second. In other words, plaintiffs get better results when they go first.
As noted above, during the joint pre-mediation conference call I use for process design and deadline setting, I encourage defense counsel to share boilerplate Final Settlement and Release of all Claims language with plaintiff’s counsel. Most promise to do so. If the document is shared and reviewed in advance, hours of negotiations over language after agreement is reached on dollars and terms can be avoided. The ex parte call provides an opportunity to remind counsel to make it happen. The hope is that exchanging final language gets counsel talking, sets the stage for productive negotiation and gives the parties a sense of optimism about a positive outcome. “Does plaintiff counsel have any problems with the language? Is it acceptable as written?
What changes, if any, are sought?”
I also recommend soliciting potential risk questions to ask in the other room. “You know the case better than I do. What do you consider the biggest risks the other side faces? What questions would you be asking if you were me?” If counsel is candid and willing to engage on this, I might also ask for a list of the toughest risk questions to ask their own client.
Does counsel need any additional information from the other side before they can mediate effectively? What do they need? Can I help obtain it for them on short notice? What’s been the hold up? If important discovery or document exchange is late, I did my best to obtain it for them.
Who needs to be present for each side for an agreement to be reached at the table? In my experience, when real decision-makers are not at the table, it is easy for them to reject final offers by telephone. They were not present to hear the risk questions, observe the reactions, or participate in the discussions that are part of the softening up process. Bringing someone up to speed can be challenging, especially if resistant to what they are hearing.
Is the defendant collectible? If defendant is claiming poverty or inability to pay a settlement, what evidence would be needed to accept the assertion as credible? For the party claiming poverty, I encouraged production of their books and records to demonstrate the credibility of their claim. Refusal to produce them adds fuels a plaintiff’s belief that the assertion of poverty is a pretense. I could often rely on experienced defense counsel to support the effort.
Are there any facts which the other side doesn’t have that might cause them to change their evaluation of the claim? What do you suppose those facts are and why don’t they have them?
How much has been incurred in attorney fees and costs to date? If counsel doesn’t have that information: “Are you willing and able to pull it together by the morning of mediation?” There are two reasons for this: First, overall costs and fees are an important consideration in determining whether to settle and on what terms. Second, a prevailing party may be entitled to recover fees and costs as in employment discrimination disputes. Precise amounts expended are very relevant to valuation.
Has counsel prepared a litigation budget if the matter doesn’t resolve at mediation? How much more is the litigation expected to cost? Has the client been informed? If the parties have not prepared a litigation budget – or it has been a long time since a budget was prepared: “Will you prepare a rough budget by the time of mediation so we can discuss potential fees and costs compared with the other side’s last and best offer?” I encourage them to include the cost of experts, if any; the preparation, drafting and argument of dispositive motions they might be considering; and how much additional discovery might be needed.
Has counsel analyzed the underlying needs and interests of their own client? In other words, what is driving this dispute? Are there external factors impacting motivation to settle? What are they? What about opposing party? What are their needs and interests? Does identification of needs and interests inform possible terms to include in their proposals to settle?
Are there any safety or danger issues we should know about? PPOs, threats, prior lawsuits, history of violent or threatening actions?
If mediating via Zoom, will counsel and client be in the same location? This information will help me recognize who is seeking admission to a Zoom session when parties seek to join the meeting.
Finally, are there any other issues they think need discussion?
Before hanging up, I clarified what we marked as confidential, if anything, and asked whether in retrospect anything else we discussed should be added to the protected list. “Here’s what I marked as confidential. Is there anything else we discussed you wouldn’t want me to disclose?”
Conclusion
The approach suggested here is designed to strengthen the mediator’s relationship with counsel, and gain additional trust and confidence in the mediator and the mediator’s process. At the conclusion of the call, advocates will have observed the mediator’s thorough preparation which should enhance confidence and trust. The questions help counsel recognize that the mediator’s goal is to help find a satisfactory resolution; and that the mediator is fair minded and capable of managing a safe, productive and useful process. By employing this ex parte tool as recommended, the mediator builds credibility and capital to overcome obstacles, build trust, improve communication and understanding and establish the foundation upon which the parties can reach a resolution of their dispute.
Check List
1. Explain confidentiality.
2. Do you have any ideas or suggestions for what a mediator might do to assist the parties in reaching an agreement?
3. Tell me about your client. How can I help you with your client?
4. Does your client have any non-economic needs or/ demands/terms?
5. If the case does NOT settle, what is your biggest fear/concern?
6. How are you getting along with the other side?
7. What do you consider the biggest impediments to settlement? Why has this case not settled?
8. What is the status of negotiations: whose turn is it to make the next move?
9. a. Was a proposed draft settlement agreement exchanged in advance?
b. Is it acceptable? What changes would you like to see, if any?
c. What are your thoughts on what a path to resolution might look like?
10. Do you have suggestions for questions I can ask in the other room that will help the other side appreciate the risks they face? How about such questions for YOUR client?
11. What can you tell me about the bargaining dynamics and personalities in the case? What non-legal issue should be on my radar screen?
12. Do you need any additional information from the other side in order to mediate effectively? What’s missing and why do you not have it yet?
13. Who needs to be present for the other side? Is there any problem with who will be there for YOUR side?
14. Have you done an asset check to determine whether the defendant is collectible?
15. Are there facts the other side might not have which could cause them to change their evaluation of the claim?
16. Litigation budget - done one; provided it to client? What are your costs to date? How much are the attorney fees to date?
17. Have you looked at the underlying needs and interests of your client? What are they? What do you think are the underlying needs and interests of the other side? What kinds of terms might be proposed to meet those needs and interests?
18. Are there safety or danger issues - PPOs, prior lawsuits, etc.?
19. If the mediation is via Zoom, will your client be at your office or will they join the meeting from their own location?
20. Are there any other issues you would like to discuss before we ring off?
Ex Parte communications are commonplace and completely ethical in the mediation process. Indeed, where “shuttle diplomacy” is the process model all communication is ex parte. In this paper, I recommend using ex parte communication with counsel prior to the date of mediation but after receipt of written submissions. The call has multiple goals and objectives including:
• Cementing a prior relationship with counsel or building a relationship where none previously existed.
• Gathering important information not included in written submissions.
• Providing advocates an opportunity to speak candidly outside the presence of their clients.
• Demonstrating the mediator’s commitment to helping advocates achieve their client’s goals.
• Planting seeds for useful techniques to be used once the mediation begins.
• Reminding counsel to sign the Agreement to Mediate, have their clients do so, and return it to the mediator.
Establishing Confidentiality
The call should start with an explanation that this is a standard part of the mediator’s preparation; all counsel will be contacted; and it is traditional/customary to start with plaintiff counsel, unless time does not allow waiting until plaintiff counsel is available.
To encourage candor the mediator should first establish confidentiality ground rules for the conversation. If there is anything counsel wouldn’t want disclosed to the other side, they need only say so and the mediator will keep it under wraps. My practice was to place responsibility on counsel. Unless they expressly designated something confidential, I explain, I would consider it fair to use in the other room especially if I thought it might be helpful.
I would promise to provide an opportunity to place any other information disclosed in the confidential category before hanging up. Finally, if it later appeared disclosure might be helpful, I would explain my thinking; then live with whatever decision they made.
Gathering Information Through Questions
Once ground rules for confidentiality are established, I recommend soliciting suggestions from counsel for techniques or an approach the mediator might employ. Many advocates offer mediation services and could provide thoughtful insight. “You’ve been living with the dispute for some time,” I might begin. “Do you have any ideas for me? If you were mediating this case, what approach or techniques would you employ?” Most often they do not have suggestions. Advocates appreciate the question, and sometimes have helpful ideas.
My second topic seeks insight into the parties. “Tell me about your client,” I always asked. “Is there anything I can do to help you with your client? Is there a message you’ve been reluctant to deliver, for example, that I could do the heavy lifting on? Is there a message you have delivered but which could use some reinforcement from me?” Lawyers are often candid and frequently provided useful insight to guide management of the process.
I next asked about non-economic needs, demands or terms. “Have you discussed with your client their non-economic objectives?” Often, the answer is no. This call, therefore, gets that conversation started between counsel and party. This is important, because once a dollar negotiation starts, non-economic terms can become stumbling blocks to resolution. It’s generally best, therefore, to get these out on the table at the very beginning. In an employment dispute, for example, is plaintiff seeking a letter of recommendation? Does a party believe liquidated damages are needed to discourage disclosure of confidential terms? It is often easier to reach agreement on non-economic terms before addressing money.
If the dispute does not settle, I wanted to know counsel’s biggest concern. What are they most worried about? “What might keep you up at night? Are you worried about disclosure of proprietary business information, for example? Or public exposure of private or embarrassing internal conflicts or problems? Do you worry about dragging an important customer or client into the dispute?” Answers to these questions often bring out important risk topics to consider at the mediation table.
How are they getting along with the other side? Do the lawyers trust one another? Have personality conflicts aggravated the dispute or made settlement more difficult? What’s driving any hostility? Issues lurking beneath the surface – lawyers rubbing each other the wrong way, for example – can threaten progress if not identified early. And related: are there any other non-legal issues that might impact resolving this dispute the mediator should know about?
What do the advocates consider the biggest impediments to resolution? Do they have suggestions for neutralizing or ameliorating them, finessing or otherwise getting around them?
Whose turn is it to make the first move at the mediation table? I always ask whether the parties are willing to disclose the status of their negotiations during the joint pre-mediation conference call. The reason to ask with all lawyers present is that the parties do not agree in at least half the cases! Most lawyers believe that where there have been no pre-mediation negotiations, the plaintiff should make the first offer. Plaintiff brought the case and presumably knows what the dispute is worth.
Accordingly, plaintiff should start. Lawyers also believe that if one side made the last offer, the offeree should put the first number out at mediation. On occasion, a plaintiff lawyer may try to shift the first number burden onto the defense. I try to discourage that with the following points:
• Plaintiff going first is the natural order of things.
• If plaintiff tries forcing defendant to start, plaintiff’s counsel risks losing respect and credibility. And, regrettably, so does a mediator who goes along with the request.
• Defendants might disengage and leave the table.
• No plaintiff attorney in my experience has ever been happy with an opening offer where defendant was forced to go first.
• Finally, “anchoring” research suggests that the final settlement number is generally closer to the first number offered in a negotiation than to the second. In other words, plaintiffs get better results when they go first.
As noted above, during the joint pre-mediation conference call I use for process design and deadline setting, I encourage defense counsel to share boilerplate Final Settlement and Release of all Claims language with plaintiff’s counsel. Most promise to do so. If the document is shared and reviewed in advance, hours of negotiations over language after agreement is reached on dollars and terms can be avoided. The ex parte call provides an opportunity to remind counsel to make it happen. The hope is that exchanging final language gets counsel talking, sets the stage for productive negotiation and gives the parties a sense of optimism about a positive outcome. “Does plaintiff counsel have any problems with the language? Is it acceptable as written?
What changes, if any, are sought?”
I also recommend soliciting potential risk questions to ask in the other room. “You know the case better than I do. What do you consider the biggest risks the other side faces? What questions would you be asking if you were me?” If counsel is candid and willing to engage on this, I might also ask for a list of the toughest risk questions to ask their own client.
Does counsel need any additional information from the other side before they can mediate effectively? What do they need? Can I help obtain it for them on short notice? What’s been the hold up? If important discovery or document exchange is late, I did my best to obtain it for them.
Who needs to be present for each side for an agreement to be reached at the table? In my experience, when real decision-makers are not at the table, it is easy for them to reject final offers by telephone. They were not present to hear the risk questions, observe the reactions, or participate in the discussions that are part of the softening up process. Bringing someone up to speed can be challenging, especially if resistant to what they are hearing.
Is the defendant collectible? If defendant is claiming poverty or inability to pay a settlement, what evidence would be needed to accept the assertion as credible? For the party claiming poverty, I encouraged production of their books and records to demonstrate the credibility of their claim. Refusal to produce them adds fuels a plaintiff’s belief that the assertion of poverty is a pretense. I could often rely on experienced defense counsel to support the effort.
Are there any facts which the other side doesn’t have that might cause them to change their evaluation of the claim? What do you suppose those facts are and why don’t they have them?
How much has been incurred in attorney fees and costs to date? If counsel doesn’t have that information: “Are you willing and able to pull it together by the morning of mediation?” There are two reasons for this: First, overall costs and fees are an important consideration in determining whether to settle and on what terms. Second, a prevailing party may be entitled to recover fees and costs as in employment discrimination disputes. Precise amounts expended are very relevant to valuation.
Has counsel prepared a litigation budget if the matter doesn’t resolve at mediation? How much more is the litigation expected to cost? Has the client been informed? If the parties have not prepared a litigation budget – or it has been a long time since a budget was prepared: “Will you prepare a rough budget by the time of mediation so we can discuss potential fees and costs compared with the other side’s last and best offer?” I encourage them to include the cost of experts, if any; the preparation, drafting and argument of dispositive motions they might be considering; and how much additional discovery might be needed.
Has counsel analyzed the underlying needs and interests of their own client? In other words, what is driving this dispute? Are there external factors impacting motivation to settle? What are they? What about opposing party? What are their needs and interests? Does identification of needs and interests inform possible terms to include in their proposals to settle?
Are there any safety or danger issues we should know about? PPOs, threats, prior lawsuits, history of violent or threatening actions?
If mediating via Zoom, will counsel and client be in the same location? This information will help me recognize who is seeking admission to a Zoom session when parties seek to join the meeting.
Finally, are there any other issues they think need discussion?
Before hanging up, I clarified what we marked as confidential, if anything, and asked whether in retrospect anything else we discussed should be added to the protected list. “Here’s what I marked as confidential. Is there anything else we discussed you wouldn’t want me to disclose?”
Conclusion
The approach suggested here is designed to strengthen the mediator’s relationship with counsel, and gain additional trust and confidence in the mediator and the mediator’s process. At the conclusion of the call, advocates will have observed the mediator’s thorough preparation which should enhance confidence and trust. The questions help counsel recognize that the mediator’s goal is to help find a satisfactory resolution; and that the mediator is fair minded and capable of managing a safe, productive and useful process. By employing this ex parte tool as recommended, the mediator builds credibility and capital to overcome obstacles, build trust, improve communication and understanding and establish the foundation upon which the parties can reach a resolution of their dispute.
Check List
1. Explain confidentiality.
2. Do you have any ideas or suggestions for what a mediator might do to assist the parties in reaching an agreement?
3. Tell me about your client. How can I help you with your client?
4. Does your client have any non-economic needs or/ demands/terms?
5. If the case does NOT settle, what is your biggest fear/concern?
6. How are you getting along with the other side?
7. What do you consider the biggest impediments to settlement? Why has this case not settled?
8. What is the status of negotiations: whose turn is it to make the next move?
9. a. Was a proposed draft settlement agreement exchanged in advance?
b. Is it acceptable? What changes would you like to see, if any?
c. What are your thoughts on what a path to resolution might look like?
10. Do you have suggestions for questions I can ask in the other room that will help the other side appreciate the risks they face? How about such questions for YOUR client?
11. What can you tell me about the bargaining dynamics and personalities in the case? What non-legal issue should be on my radar screen?
12. Do you need any additional information from the other side in order to mediate effectively? What’s missing and why do you not have it yet?
13. Who needs to be present for the other side? Is there any problem with who will be there for YOUR side?
14. Have you done an asset check to determine whether the defendant is collectible?
15. Are there facts the other side might not have which could cause them to change their evaluation of the claim?
16. Litigation budget - done one; provided it to client? What are your costs to date? How much are the attorney fees to date?
17. Have you looked at the underlying needs and interests of your client? What are they? What do you think are the underlying needs and interests of the other side? What kinds of terms might be proposed to meet those needs and interests?
18. Are there safety or danger issues - PPOs, prior lawsuits, etc.?
19. If the mediation is via Zoom, will your client be at your office or will they join the meeting from their own location?
20. Are there any other issues you would like to discuss before we ring off?
Plenty of comic fodder in store thanks to return of ‘Walkerisms’
January 30 ,2025
Finally, we have a nominee for the incoming Trump administration that we should welcome back with open arms.
:
Berl Falbaum
Finally, we have a nominee for the incoming Trump administration that we should welcome back with open arms.
You may remember him: Herschel Walker who, in 2022, ran for the U.S. Senate in Georgia, losing by only a little less than 3 percent.
What is so special about Walker as opposed to other nominees Donald Trump has recommended? Walker, Trump’s candidate, provided us with much-needed relief from dark, oppressive Trumpian politics.
Alas, when he lost, I shed a tear; no one gave us so much material for irreverent satire. He was our Falstaff, who in three of Shakespeare’s plays, gave us pause from heartfelt tragedies with his comic demeanor, carousing with drunks and prostitutes, and showing nothing but contempt for those around him.
Following Walker’s loss, I said we were gonna miss the guy.
While I seriously doubt that Trump thought of Falstaff when he recently nominated Walker to be nothing less than ambassador to the Bahamas, I felt like writing a thank you note to the president.
A confession first: I have no idea whatsoever why we need an ambassador in the Bahamas. What in the world will Walker do? I suspect he has no idea either.
I googled “foreign relations between the U.S. and the Bahamas” and learned that all was pretty hunky-dory. Everything is copasetic. According to several intelligence agencies we contacted, the Bahamas have no plans to invade the continental U.S. We were assured that the ships in its “navy,” when not involved in ultra-secret military operations, are rented to tourists for fishing and waterskiing. Great source of needed revenue. Moreover, the U.S. is happy to have the Bahamas serve as a getaway for snowbirds in the winters.
As I cogitated over this appointment, I remembered that in the Senate campaign while explaining his environmental policies, Walker told us he did not believe we need any more trees. Specifically, he asked: “Don’t we have enough trees [already] around here?”
That, at least, gives us a partial answer for the appointment: there are no trees on the beaches in the Bahamas. Not a one. Just miles and miles of treeless white sand.
He also articulated unique insights on why we are suffering from air pollution. Walker explained that we have so much bad air because our good air “decided” -- on its own -- to move to China. To make room for good air, China sent us its bad air.
I discounted that at the time, but now I hope Trump gives him at least one assignment: Have the Bahamas send warm air -- of course, clean warm air -- to Michigan between November and the end of April. They will not have to send us all their warm air; just enough so we can reach, let’s say, 60 degrees. The Bahamians have more than enough warm air to stay comfortable.
We will promise not to send our bad cold air their way. The two Michigan U.S. senators will sign a pact promising not to ship cold dirty air south and east.
(In our research for this column, we learned that Walker won his nomination after suggesting to Trump that he reduces proposed tariffs on China if it returns some of our healthy air.)
Overall, Walker insisted the U.S. is not ready for what is called a green agenda, stating:
“If we were ready for the green agenda, I’d raise my hand right now. But we’re not ready right now. So don’t let them fool you like this is a new agenda. This is not a new agenda. We’re not prepared. We’re not ready right now. What we need to do is keep having those gas-guzzling cars, ’cause we got the good emissions under those cars. We’re doing the best thing that we can.”
We will also promise not to send the “good emissions” from gas-guzzling cars.
Walker also challenged the theory of evolution and posed a question for which even Darwin would not have had a response. He asked:
“At one time, science said man came from apes. Did it not? If that is true, why are there still apes? Think about it.”
After thinking about it, I believe he may be right: Evolution appears complete in the Bahamas. There are no apes in the island country. There are some monkeys but they are not indigenous to the Bahamas.
It’s worth noting that 1.7 million Georgians voted for Walker’s environmental and evolution beliefs. They must have been impressed with his patriotism because, displaying his national pride, he referred to America “as the greatest country in the United States.”
Walkerites also were not disturbed by problems Walker has with his selected memory which includes the following:
--He remembered earning a college degree from the University of Georgia which he did not, but forgot about three children he sired. (It’s easy to confuse the two.)
--He also remembered being in the top 1 percent of the university class from which he did not graduate.
--He remembered that he was the valedictorian in his high school graduation class, but there is no record of that.
--He remembered doing “a lot of things in the military.” That’s the military in which he did not serve.
--He remembered supervising six U. S. hospitals. These apparently did not have any doctors, nurses or patients because no one could find them. Perhaps Robert F. Kennedy Jr., the anti-vaccine advocate and whom Trump picked to head the Department of Health and Human Services, worked in one of them.
With little to do, perhaps the warm climate and rest will help Walker with his memory.
In any case, with Walker returning to national politics, we look forward to more Walkerisms. The problem: ambassadors to the Bahamas do not receive much coverage from the mainstream media.
Thus, we plan to contact Walker for interviews once a month at his ambassadorial residence which, we assume, will be a shed on the beach.
—————
Berl Falbaum is a political author and journalist and the author of several books.
You may remember him: Herschel Walker who, in 2022, ran for the U.S. Senate in Georgia, losing by only a little less than 3 percent.
What is so special about Walker as opposed to other nominees Donald Trump has recommended? Walker, Trump’s candidate, provided us with much-needed relief from dark, oppressive Trumpian politics.
Alas, when he lost, I shed a tear; no one gave us so much material for irreverent satire. He was our Falstaff, who in three of Shakespeare’s plays, gave us pause from heartfelt tragedies with his comic demeanor, carousing with drunks and prostitutes, and showing nothing but contempt for those around him.
Following Walker’s loss, I said we were gonna miss the guy.
While I seriously doubt that Trump thought of Falstaff when he recently nominated Walker to be nothing less than ambassador to the Bahamas, I felt like writing a thank you note to the president.
A confession first: I have no idea whatsoever why we need an ambassador in the Bahamas. What in the world will Walker do? I suspect he has no idea either.
I googled “foreign relations between the U.S. and the Bahamas” and learned that all was pretty hunky-dory. Everything is copasetic. According to several intelligence agencies we contacted, the Bahamas have no plans to invade the continental U.S. We were assured that the ships in its “navy,” when not involved in ultra-secret military operations, are rented to tourists for fishing and waterskiing. Great source of needed revenue. Moreover, the U.S. is happy to have the Bahamas serve as a getaway for snowbirds in the winters.
As I cogitated over this appointment, I remembered that in the Senate campaign while explaining his environmental policies, Walker told us he did not believe we need any more trees. Specifically, he asked: “Don’t we have enough trees [already] around here?”
That, at least, gives us a partial answer for the appointment: there are no trees on the beaches in the Bahamas. Not a one. Just miles and miles of treeless white sand.
He also articulated unique insights on why we are suffering from air pollution. Walker explained that we have so much bad air because our good air “decided” -- on its own -- to move to China. To make room for good air, China sent us its bad air.
I discounted that at the time, but now I hope Trump gives him at least one assignment: Have the Bahamas send warm air -- of course, clean warm air -- to Michigan between November and the end of April. They will not have to send us all their warm air; just enough so we can reach, let’s say, 60 degrees. The Bahamians have more than enough warm air to stay comfortable.
We will promise not to send our bad cold air their way. The two Michigan U.S. senators will sign a pact promising not to ship cold dirty air south and east.
(In our research for this column, we learned that Walker won his nomination after suggesting to Trump that he reduces proposed tariffs on China if it returns some of our healthy air.)
Overall, Walker insisted the U.S. is not ready for what is called a green agenda, stating:
“If we were ready for the green agenda, I’d raise my hand right now. But we’re not ready right now. So don’t let them fool you like this is a new agenda. This is not a new agenda. We’re not prepared. We’re not ready right now. What we need to do is keep having those gas-guzzling cars, ’cause we got the good emissions under those cars. We’re doing the best thing that we can.”
We will also promise not to send the “good emissions” from gas-guzzling cars.
Walker also challenged the theory of evolution and posed a question for which even Darwin would not have had a response. He asked:
“At one time, science said man came from apes. Did it not? If that is true, why are there still apes? Think about it.”
After thinking about it, I believe he may be right: Evolution appears complete in the Bahamas. There are no apes in the island country. There are some monkeys but they are not indigenous to the Bahamas.
It’s worth noting that 1.7 million Georgians voted for Walker’s environmental and evolution beliefs. They must have been impressed with his patriotism because, displaying his national pride, he referred to America “as the greatest country in the United States.”
Walkerites also were not disturbed by problems Walker has with his selected memory which includes the following:
--He remembered earning a college degree from the University of Georgia which he did not, but forgot about three children he sired. (It’s easy to confuse the two.)
--He also remembered being in the top 1 percent of the university class from which he did not graduate.
--He remembered that he was the valedictorian in his high school graduation class, but there is no record of that.
--He remembered doing “a lot of things in the military.” That’s the military in which he did not serve.
--He remembered supervising six U. S. hospitals. These apparently did not have any doctors, nurses or patients because no one could find them. Perhaps Robert F. Kennedy Jr., the anti-vaccine advocate and whom Trump picked to head the Department of Health and Human Services, worked in one of them.
With little to do, perhaps the warm climate and rest will help Walker with his memory.
In any case, with Walker returning to national politics, we look forward to more Walkerisms. The problem: ambassadors to the Bahamas do not receive much coverage from the mainstream media.
Thus, we plan to contact Walker for interviews once a month at his ambassadorial residence which, we assume, will be a shed on the beach.
—————
Berl Falbaum is a political author and journalist and the author of several books.
What arbitrators wish advocates knew: Best practices for labor and employment arbitration
January 16 ,2025
Arbitration in labor and employment law presents unique challenges that
require advocates to be strategic, precise, and respectful of both the
process and the participants.
:
Lisa W. Timmons
Arbitration in labor and employment law presents unique challenges that require advocates to be strategic, precise, and respectful of both the process and the participants.
Arbitrators in these cases often observe common missteps that can be avoided with a thoughtful, streamlined approach. This article provides advice from the perspective of an arbitrator on how advocates can prepare and participate more effectively, ultimately making a positive impression on the arbitrator and strengthening their case.
Labor and employment disputes typically involve complex issues such as collective bargaining agreements, workplace policies, and sensitive employee matters. Given the nuanced nature of these cases, arbitrators emphasize the importance of careful preparation and clear presentation of evidence. They advise advocates to understand and be able to explain the contract, gather and present strong evidence, focus on key issues, and maintain a respectful and professional demeanor throughout the hearing.
1. Thoroughly Review the Contract
Advocates should review the CBA or employment contract well in advance, identifying the specific clauses that apply to the case. This may include clauses related to termination procedures, grievance procedures, discipline, and employee/management rights. A strong understanding of these terms is essential because labor disputes often hinge on precise contractual language. Each word or phrase in a contract can carry significant implications, and arbitrators expect advocates to be ready to explain and interpret these nuances effectively.
Identify Relevant Clauses and Interpretations
When reviewing the contract, advocates should consider multiple interpretations of relevant clauses, especially those with vague or open-ended language. Anticipating how the opposing side might interpret a clause allows advocates to prepare counterarguments in advance, adding depth to their case. Arbitrators appreciate advocates who present a balanced perspective, acknowledging ambiguities in the contract and offering reasoned interpretations or evidence of past practice that supports their case. By demonstrating a command of the contract language, advocates build credibility and lay the groundwork for persuasive arguments.
2. Present Strong Evidence
A strong case is built on a foundation of solid evidence and arbitrators rely on advocates to present credible, well-organized evidence that supports their arguments. Advocates should gather all supporting documentation, including relevant employment records, communications, policies, and other materials directly related to the dispute. In addition to these documents, ensure that every essential piece of evidence is readily accessible in the case file, as arbitrators value a well-prepared file that eliminates unnecessary delays or gaps in the case.
Establish Credibility and Relevance
In selecting evidence, advocates should focus on relevance and credibility. Highlight the most compelling documents and witness testimony without overloading the case with superfluous details. Each piece of evidence presented should be clearly tied to the case’s main arguments, allowing the arbitrator to easily connect the evidence with the advocate’s theory of the case.
Agree on Joint Exhibits When Possible
To streamline proceedings, advocates should work with opposing counsel to establish joint exhibits wherever possible. Agreeing on joint exhibits reduces redundancies and allows the arbitrator to focus on the core evidence efficiently. Visual aids, if used, should enhance the arbitrator’s understanding of complex information without adding unnecessary volume to the presentation.
Address Attorney Fees Early
In many employment law cases, advocates may seek attorney fees as part of the remedy. Discussing attorney fees early provides clarity on the potential entitlement basis—whether statutory or contractual—and allows the arbitrator to set a scheduling order that includes provisions for post-hearing briefs if fees are awarded. Establishing a framework for attorney fees at the outset helps streamline the process, reducing the likelihood of disputes or procedural delays after the award.
3. Structure Arguments Logically
While advocates know their case, they need to appreciate the art of telling the story. Meaning, presenting arguments in a logical sequence. Opening with a clear statement of the case theory, followed by a methodical presentation of evidence and witness testimony, helps the arbitrator grasp the key points without distraction. Avoiding unnecessary tangents or lengthy asides is essential. Instead, advocates should focus on delivering a structured presentation that flows naturally from one point to the next.
Focus on Key Issues
Employment and labor cases often involve multiple points of contention, but not all issues carry equal weight in the final decision. Advocates who successfully identify and emphasize the most critical issues are better positioned to persuade the arbitrator. This may include disputes over specific contract terms, interpretations of workplace policies, or the justification for disciplinary actions. Focusing on these central issues prevents advocates from diluting their arguments by addressing peripheral matters that have minimal impact on the arbitrator’s final decision.
5. Maintain a Professional Demeanor
Professionalism extends beyond the arbitrator to include respect for opposing counsel, witnesses, and other participants in the hearing. Advocates should avoid personal attacks, overly aggressive tactics, or inflammatory language, as these behaviors detract from the case’s focus and can hinder productive dialogue. Even when opposing views or decisions are contested, maintaining a respectful approach strengthens the advocate’s credibility and reinforces their commitment to a fair process.
Avoid Excessive Objections and a Combative Tone
Arbitration often involves a more relaxed standard for the admissibility of evidence than traditional court proceedings. Advocates should avoid excessive objections and refrain from an overly combative stance. The arbitrator is a trained, neutral decision-maker who can assess the relevance and weight of evidence as it is presented. By allowing a broader scope of evidence and maintaining a cooperative approach, advocates demonstrate respect for the arbitrator’s role and create a smoother, less confrontational hearing process.
6. Communicate Effectively
Effective communication is essential in arbitration. Advocates should strive to present information clearly and avoid excessive legal jargon that may obscure their points. Arbitrators welcome advocates who focus on clarity, simplicity, and precision in their language.
Use Plain Language
While legal terminology is sometimes unavoidable, advocates should aim to use plain language wherever possible. By speaking directly and avoiding overly technical language, advocates make it easier for the arbitrator to follow their arguments. Clear language also reduces the risk of misinterpretation, ensuring that the arbitrator grasps the main points without confusion.
Explain Technical Terms When Necessary
If specialized terms or industry-specific jargon are essential to the case, advocates should take the time to explain these terms in plain English. This approach demonstrates consideration for the arbitrator’s understanding and helps bridge any potential knowledge gaps that might otherwise impact the arbitrator’s understanding of the case.
7. Consider the Bigger Picture
Labor and employment disputes often involve ongoing relationships between employees, employers, and unions. Advocates who keep the bigger picture in mind help create a more constructive process that can support future interactions. While advocates should vigorously represent their clients, they should also be mindful of the lasting impact of the dispute on the relationship between the parties. Advocates who approach arbitration with an understanding of these long-term dynamics demonstrate a balanced perspective.
Conclusion
Labor and employment arbitration requires advocates to prioritize preparation, clarity, and professionalism. By understanding the contract, presenting strong evidence, focusing on key issues, and respecting the arbitrator’s role, advocates can strengthen their case and contribute to an effective arbitration process. These practices not only enhance the advocate’s credibility but also foster a respectful and efficient environment that benefits all parties involved.
—————
Lisa W. Timmons is a highly qualified and experienced arbitrator and mediator of labor and employment, commercial, general civil, probate, domestic relations, and real estate cases. She also offers pro bono mediation to resolve §1983 cases for the U.S. District Court of the Eastern District of Michigan, and discovery motions on the general civil and business court dockets in Oakland County Circuit Court.
Timmons earned a Bachelor of Arts in Communication from Michigan State University, a Master of Arts in Dispute Resolution from Wayne State University, a Juris Doctor from Detroit Mercy Law, and is a Michigan licensed real estate broker.
She was named an Up-and-Coming Lawyer in 2021 by Michigan Lawyers Weekly and received an ADR Hero Award in 2022 from the State Bar of Michigan’s ADR Section.
She is also the Executive Director of the Mediation Tribunal Association (MTA), the largest provider of court-mandated alternative dispute resolution services in Michigan.
Timmons is a member of several other professional associations and enjoys doing pro bono work to promote the diversification of the legal community.
Arbitrators in these cases often observe common missteps that can be avoided with a thoughtful, streamlined approach. This article provides advice from the perspective of an arbitrator on how advocates can prepare and participate more effectively, ultimately making a positive impression on the arbitrator and strengthening their case.
Labor and employment disputes typically involve complex issues such as collective bargaining agreements, workplace policies, and sensitive employee matters. Given the nuanced nature of these cases, arbitrators emphasize the importance of careful preparation and clear presentation of evidence. They advise advocates to understand and be able to explain the contract, gather and present strong evidence, focus on key issues, and maintain a respectful and professional demeanor throughout the hearing.
1. Thoroughly Review the Contract
Advocates should review the CBA or employment contract well in advance, identifying the specific clauses that apply to the case. This may include clauses related to termination procedures, grievance procedures, discipline, and employee/management rights. A strong understanding of these terms is essential because labor disputes often hinge on precise contractual language. Each word or phrase in a contract can carry significant implications, and arbitrators expect advocates to be ready to explain and interpret these nuances effectively.
Identify Relevant Clauses and Interpretations
When reviewing the contract, advocates should consider multiple interpretations of relevant clauses, especially those with vague or open-ended language. Anticipating how the opposing side might interpret a clause allows advocates to prepare counterarguments in advance, adding depth to their case. Arbitrators appreciate advocates who present a balanced perspective, acknowledging ambiguities in the contract and offering reasoned interpretations or evidence of past practice that supports their case. By demonstrating a command of the contract language, advocates build credibility and lay the groundwork for persuasive arguments.
2. Present Strong Evidence
A strong case is built on a foundation of solid evidence and arbitrators rely on advocates to present credible, well-organized evidence that supports their arguments. Advocates should gather all supporting documentation, including relevant employment records, communications, policies, and other materials directly related to the dispute. In addition to these documents, ensure that every essential piece of evidence is readily accessible in the case file, as arbitrators value a well-prepared file that eliminates unnecessary delays or gaps in the case.
Establish Credibility and Relevance
In selecting evidence, advocates should focus on relevance and credibility. Highlight the most compelling documents and witness testimony without overloading the case with superfluous details. Each piece of evidence presented should be clearly tied to the case’s main arguments, allowing the arbitrator to easily connect the evidence with the advocate’s theory of the case.
Agree on Joint Exhibits When Possible
To streamline proceedings, advocates should work with opposing counsel to establish joint exhibits wherever possible. Agreeing on joint exhibits reduces redundancies and allows the arbitrator to focus on the core evidence efficiently. Visual aids, if used, should enhance the arbitrator’s understanding of complex information without adding unnecessary volume to the presentation.
Address Attorney Fees Early
In many employment law cases, advocates may seek attorney fees as part of the remedy. Discussing attorney fees early provides clarity on the potential entitlement basis—whether statutory or contractual—and allows the arbitrator to set a scheduling order that includes provisions for post-hearing briefs if fees are awarded. Establishing a framework for attorney fees at the outset helps streamline the process, reducing the likelihood of disputes or procedural delays after the award.
3. Structure Arguments Logically
While advocates know their case, they need to appreciate the art of telling the story. Meaning, presenting arguments in a logical sequence. Opening with a clear statement of the case theory, followed by a methodical presentation of evidence and witness testimony, helps the arbitrator grasp the key points without distraction. Avoiding unnecessary tangents or lengthy asides is essential. Instead, advocates should focus on delivering a structured presentation that flows naturally from one point to the next.
Focus on Key Issues
Employment and labor cases often involve multiple points of contention, but not all issues carry equal weight in the final decision. Advocates who successfully identify and emphasize the most critical issues are better positioned to persuade the arbitrator. This may include disputes over specific contract terms, interpretations of workplace policies, or the justification for disciplinary actions. Focusing on these central issues prevents advocates from diluting their arguments by addressing peripheral matters that have minimal impact on the arbitrator’s final decision.
5. Maintain a Professional Demeanor
Professionalism extends beyond the arbitrator to include respect for opposing counsel, witnesses, and other participants in the hearing. Advocates should avoid personal attacks, overly aggressive tactics, or inflammatory language, as these behaviors detract from the case’s focus and can hinder productive dialogue. Even when opposing views or decisions are contested, maintaining a respectful approach strengthens the advocate’s credibility and reinforces their commitment to a fair process.
Avoid Excessive Objections and a Combative Tone
Arbitration often involves a more relaxed standard for the admissibility of evidence than traditional court proceedings. Advocates should avoid excessive objections and refrain from an overly combative stance. The arbitrator is a trained, neutral decision-maker who can assess the relevance and weight of evidence as it is presented. By allowing a broader scope of evidence and maintaining a cooperative approach, advocates demonstrate respect for the arbitrator’s role and create a smoother, less confrontational hearing process.
6. Communicate Effectively
Effective communication is essential in arbitration. Advocates should strive to present information clearly and avoid excessive legal jargon that may obscure their points. Arbitrators welcome advocates who focus on clarity, simplicity, and precision in their language.
Use Plain Language
While legal terminology is sometimes unavoidable, advocates should aim to use plain language wherever possible. By speaking directly and avoiding overly technical language, advocates make it easier for the arbitrator to follow their arguments. Clear language also reduces the risk of misinterpretation, ensuring that the arbitrator grasps the main points without confusion.
Explain Technical Terms When Necessary
If specialized terms or industry-specific jargon are essential to the case, advocates should take the time to explain these terms in plain English. This approach demonstrates consideration for the arbitrator’s understanding and helps bridge any potential knowledge gaps that might otherwise impact the arbitrator’s understanding of the case.
7. Consider the Bigger Picture
Labor and employment disputes often involve ongoing relationships between employees, employers, and unions. Advocates who keep the bigger picture in mind help create a more constructive process that can support future interactions. While advocates should vigorously represent their clients, they should also be mindful of the lasting impact of the dispute on the relationship between the parties. Advocates who approach arbitration with an understanding of these long-term dynamics demonstrate a balanced perspective.
Conclusion
Labor and employment arbitration requires advocates to prioritize preparation, clarity, and professionalism. By understanding the contract, presenting strong evidence, focusing on key issues, and respecting the arbitrator’s role, advocates can strengthen their case and contribute to an effective arbitration process. These practices not only enhance the advocate’s credibility but also foster a respectful and efficient environment that benefits all parties involved.
—————
Lisa W. Timmons is a highly qualified and experienced arbitrator and mediator of labor and employment, commercial, general civil, probate, domestic relations, and real estate cases. She also offers pro bono mediation to resolve §1983 cases for the U.S. District Court of the Eastern District of Michigan, and discovery motions on the general civil and business court dockets in Oakland County Circuit Court.
Timmons earned a Bachelor of Arts in Communication from Michigan State University, a Master of Arts in Dispute Resolution from Wayne State University, a Juris Doctor from Detroit Mercy Law, and is a Michigan licensed real estate broker.
She was named an Up-and-Coming Lawyer in 2021 by Michigan Lawyers Weekly and received an ADR Hero Award in 2022 from the State Bar of Michigan’s ADR Section.
She is also the Executive Director of the Mediation Tribunal Association (MTA), the largest provider of court-mandated alternative dispute resolution services in Michigan.
Timmons is a member of several other professional associations and enjoys doing pro bono work to promote the diversification of the legal community.
The Arbitration Agreement: Drafting Effective Clauses
December 19 ,2024
This is the second article in a 12-part series on domestic arbitration,
offering a clear guide through each stage of the process.
:
Harshitha Ram
This is the second article in a 12-part series on domestic arbitration, offering a clear guide through each stage of the process.
In this installment, "The Arbitration Agreement: Drafting Effective Clauses" offers insights into creating strong arbitration agreements that set the foundation for a successful resolution.
Stay tuned for Part 3: “Initiating Arbitration: Filing the Demand and Response” coming next month.
The dispute resolution clause is often the most critical yet neglected part of a contract. While parties meticulously draft provisions for pricing, delivery, and performance, they frequently relegate this clause to boilerplate language, assuming it will never be needed.
However, when disputes inevitably arise, this "afterthought" becomes the lifeline of the contract, determining how efficiently and effectively conflicts are resolved.
A poorly drafted clause can derail the entire process, leaving parties entangled in costly litigation over its interpretation. In reality, this clause is not just a line in the contract—it is the backbone of the agreement's enforceability and the key to safeguarding relationships and business interests.
The importance of a well-drafted dispute resolution clause cannot be overstated, as poorly worded clauses can lead to procedural deadlocks, unnecessary costs, and delays.
A Lesson from the Courts: The Case of the ‘Any Dispute Clause’
Consider an arbitration where a vague arbitration clause leads to significant confusion. The clause reads: “Any disputes between the parties will be resolved by arbitration.” At first glance, this seems straightforward. However, it lacks critical details such as the arbitral forum, governing rules, applicable laws, the number of arbitrators and other pertinent information. When a multimillion-dollar dispute arose, the parties spent months arguing over the basics: where the arbitration would occur, which procedural rules applied, and even whether the clause was enforceable. Eventually, the case ended up in court, where the judge ruled that the clause was too ambiguous to enforce. The result? The parties wasted thousands of dollars litigating the very issue they had hoped to avoid by including an arbitration clause in the first place. This highlights why clarity and specificity in arbitration agreements are non-negotiable.
A comprehensive arbitration clause should address at least the following key points:
• Arbitration Rules: Specify which rules govern the arbitration in case of institutional arbitration preferences such as the AAA Commercial Rules or JAMS Rules. If the parties wish to have an ad hoc arbitration, it is primarily governed by the Federal Arbitration Act (FAA) and the parties' arbitration agreement. If the arbitration agreement is silent on specific procedural rules, arbitrators often look to established frameworks like the UNCITRAL Arbitration Rules, which are frequently used in ad hoc arbitrations worldwide.
• Arbitrator Selection: Define the process for selecting arbitrators. Will there be one arbitrator or a panel of three.
• Venue: Identify the location where the arbitration will occur. This is especially critical in domestic disputes involving parties from different states.
• Governing Law: Specify which state’s law will govern the arbitration agreement.
• Scope of Disputes: Clearly define what types of disputes are subject to arbitration.
When Over-Engineering Backfires
Interestingly, over-engineering an arbitration clause can also create complications. In a case involving a franchise agreement, the arbitration clause spanned three full pages and included every conceivable provision—from discovery limitations to specific arbitrator qualifications. While the intent was to create a watertight agreement, the sheer complexity of the clause led to confusion. For instance, one provision required arbitrators to have at least 20 years of experience in the specific industry, effectively eliminating most qualified arbitrators from consideration. Another clause limited document discovery to 10 pages per party, which proved insufficient for resolving the case’s intricate financial disputes. This illustrates that balance is key—drafting a clause that is thorough yet practical.
A notable example emphasizing the importance of clarity in arbitration agreements is the U.S. Supreme Court case Henry Schein, Inc. v. Archer & White Sales, Inc. In 2019, the Court examined whether courts could bypass an arbitration agreement if the request to arbitrate was deemed 'wholly groundless.' The Court ultimately ruled that when parties have explicitly delegated the question of arbitrability to an arbitrator, courts must honor that delegation—even if they believe the arbitration claim lacks substance. This landmark decision accentuates the critical need for precision when drafting arbitration clauses to ensure enforceability and uphold party autonomy.
Drafting Tip: Think Beyond the Basics
The beauty of arbitration lies in its flexibility, and your clause should take full advantage of this. For instance, a tech company facing potential intellectual property disputes might include a clause specifying that arbitrators must have expertise in patent law. Businesses in highly regulated industries such as finance, healthcare, or technology, often go a step further to double-protect sensitive information by including explicit confidentiality clauses in their arbitration agreements. While arbitration is generally perceived as private, these additional provisions ensure that every aspect of the process, including proceedings, evidence, and outcomes, remains strictly confidential. The arbitration clause: a gateway to streamlined dispute resolution, not just a contract filler. It is a roadmap for dispute resolution. Take the time to tailor it to your specific needs and anticipate potential conflicts. By doing so, you can avoid the pitfalls of vague or overly complex clauses and ensure a smoother arbitration process. As the old adage goes with a clever twist, “An ounce of arbitration is worth a pound of litigation.” In the context of arbitration agreements, a few extra hours spent drafting an effective clause can save months of frustration later. Stay tuned for next month’s installment, where we will delve into the intricacies of “Initiating Arbitration: Filing the Demand and Response.” A guide on how arbitration is formally initiated, the filing process, timelines, and the Respondent’s role in answering the claim.
—————
Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). She serves as the Chair of the ADR Section of the Detroit Bar Association and is the Publications Chair for the Arbitration Committee of the American Bar Association. To learn more, visit: www.harshitharam.com www.adracademy.us.
In this installment, "The Arbitration Agreement: Drafting Effective Clauses" offers insights into creating strong arbitration agreements that set the foundation for a successful resolution.
Stay tuned for Part 3: “Initiating Arbitration: Filing the Demand and Response” coming next month.
The dispute resolution clause is often the most critical yet neglected part of a contract. While parties meticulously draft provisions for pricing, delivery, and performance, they frequently relegate this clause to boilerplate language, assuming it will never be needed.
However, when disputes inevitably arise, this "afterthought" becomes the lifeline of the contract, determining how efficiently and effectively conflicts are resolved.
A poorly drafted clause can derail the entire process, leaving parties entangled in costly litigation over its interpretation. In reality, this clause is not just a line in the contract—it is the backbone of the agreement's enforceability and the key to safeguarding relationships and business interests.
The importance of a well-drafted dispute resolution clause cannot be overstated, as poorly worded clauses can lead to procedural deadlocks, unnecessary costs, and delays.
A Lesson from the Courts: The Case of the ‘Any Dispute Clause’
Consider an arbitration where a vague arbitration clause leads to significant confusion. The clause reads: “Any disputes between the parties will be resolved by arbitration.” At first glance, this seems straightforward. However, it lacks critical details such as the arbitral forum, governing rules, applicable laws, the number of arbitrators and other pertinent information. When a multimillion-dollar dispute arose, the parties spent months arguing over the basics: where the arbitration would occur, which procedural rules applied, and even whether the clause was enforceable. Eventually, the case ended up in court, where the judge ruled that the clause was too ambiguous to enforce. The result? The parties wasted thousands of dollars litigating the very issue they had hoped to avoid by including an arbitration clause in the first place. This highlights why clarity and specificity in arbitration agreements are non-negotiable.
A comprehensive arbitration clause should address at least the following key points:
• Arbitration Rules: Specify which rules govern the arbitration in case of institutional arbitration preferences such as the AAA Commercial Rules or JAMS Rules. If the parties wish to have an ad hoc arbitration, it is primarily governed by the Federal Arbitration Act (FAA) and the parties' arbitration agreement. If the arbitration agreement is silent on specific procedural rules, arbitrators often look to established frameworks like the UNCITRAL Arbitration Rules, which are frequently used in ad hoc arbitrations worldwide.
• Arbitrator Selection: Define the process for selecting arbitrators. Will there be one arbitrator or a panel of three.
• Venue: Identify the location where the arbitration will occur. This is especially critical in domestic disputes involving parties from different states.
• Governing Law: Specify which state’s law will govern the arbitration agreement.
• Scope of Disputes: Clearly define what types of disputes are subject to arbitration.
When Over-Engineering Backfires
Interestingly, over-engineering an arbitration clause can also create complications. In a case involving a franchise agreement, the arbitration clause spanned three full pages and included every conceivable provision—from discovery limitations to specific arbitrator qualifications. While the intent was to create a watertight agreement, the sheer complexity of the clause led to confusion. For instance, one provision required arbitrators to have at least 20 years of experience in the specific industry, effectively eliminating most qualified arbitrators from consideration. Another clause limited document discovery to 10 pages per party, which proved insufficient for resolving the case’s intricate financial disputes. This illustrates that balance is key—drafting a clause that is thorough yet practical.
A notable example emphasizing the importance of clarity in arbitration agreements is the U.S. Supreme Court case Henry Schein, Inc. v. Archer & White Sales, Inc. In 2019, the Court examined whether courts could bypass an arbitration agreement if the request to arbitrate was deemed 'wholly groundless.' The Court ultimately ruled that when parties have explicitly delegated the question of arbitrability to an arbitrator, courts must honor that delegation—even if they believe the arbitration claim lacks substance. This landmark decision accentuates the critical need for precision when drafting arbitration clauses to ensure enforceability and uphold party autonomy.
Drafting Tip: Think Beyond the Basics
The beauty of arbitration lies in its flexibility, and your clause should take full advantage of this. For instance, a tech company facing potential intellectual property disputes might include a clause specifying that arbitrators must have expertise in patent law. Businesses in highly regulated industries such as finance, healthcare, or technology, often go a step further to double-protect sensitive information by including explicit confidentiality clauses in their arbitration agreements. While arbitration is generally perceived as private, these additional provisions ensure that every aspect of the process, including proceedings, evidence, and outcomes, remains strictly confidential. The arbitration clause: a gateway to streamlined dispute resolution, not just a contract filler. It is a roadmap for dispute resolution. Take the time to tailor it to your specific needs and anticipate potential conflicts. By doing so, you can avoid the pitfalls of vague or overly complex clauses and ensure a smoother arbitration process. As the old adage goes with a clever twist, “An ounce of arbitration is worth a pound of litigation.” In the context of arbitration agreements, a few extra hours spent drafting an effective clause can save months of frustration later. Stay tuned for next month’s installment, where we will delve into the intricacies of “Initiating Arbitration: Filing the Demand and Response.” A guide on how arbitration is formally initiated, the filing process, timelines, and the Respondent’s role in answering the claim.
—————
Harshitha Ram is an international disputes attorney, arbitrator, mediator, lecturer in law, and the President of the Global Arbitration Mediation Academy (GAMA). She serves as the Chair of the ADR Section of the Detroit Bar Association and is the Publications Chair for the Arbitration Committee of the American Bar Association. To learn more, visit: www.harshitharam.com www.adracademy.us.
Thoughts on the mediator’s proposal
December 12 ,2024
Mediation is a private, voluntary dispute resolution process in which a
neutral third party--either appointed by a court or invited by all
parties to the dispute-- assists the parties by identifying issues of
mutual concern, helping them develop options for resolving those issues,
and finding resolutions acceptable to all parties.
:
William D. Gilbride Jr.
Mediation is a private, voluntary dispute resolution process in which a neutral third party--either appointed by a court or invited by all parties to the dispute-- assists the parties by identifying issues of mutual concern, helping them develop options for resolving those issues, and finding resolutions acceptable to all parties. In recent years there has been a strong emphasis on utilizing mediation as a means of resolving civil cases. “Facilitative mediation” or, simply, “mediation” as defined in the Michigan court rules is a less intrusive form of third-party involvement in the dispute, since the parties retain control over vital decisions affecting their lives. Mediated outcomes may be tailored to meet the needs and interests of the parties and reflect the parties’ own preferences and priorities in an effort to create a "win-win" result.
Recent experience has shown that in mediation, since parties create their own resolution and because mediators have a duty to ensure that agreements reached are “durable," there is greater satisfaction by the parties to the dispute with the mediated outcome, and with that satisfaction comes a higher level of compliance than with court judgments. The mediation process empowers the parties to understand both sides of the dispute and to fully engage in the process themselves to resolve the disputes: in essence, the participants in the mediation process retain control over the outcome. Since the process is confidential, the parties can keep their matters—and their resolution—private. All of the foregoing virtues of the mediation process have been successful in developing mediated settlements of civil cases.
Prior to January 1, 2022, the Michigan court rules allowed for case evaluation. Under MCR 2.403, 2.404 and 2.503 case evaluation was established to obtain an “objective assessment" of the claims, defenses and counterclaims in a civil proceeding. The case evaluation process was in place for many years and it allowed litigants to receive an evaluation of their case from an experienced, independent third party (or panel) prior to trial. The theory for case evaluation was that the settlement recommended by the case evaluators would assist in allowing the parties to develop a settlement.
The case evaluation rules included a sanction provision which penalized a party for failure to accept the recommended case evaluation amount. A party who rejected case evaluation faced a financial penalty imposed by the court if they rejected the case evaluation amount and then failed to improve their economic position at trial by 10% or more when compared with the dollar amount of the case evaluation. This sanction provision was effectively removed on January 1, 2022, and ended up being the “death knell" of case evaluation. Once the sanctions provisions were removed from the case evaluation rules, case evaluation became meaningless, so the courts and the litigants stopped utilizing it as a pre-trial reality check on the merits of claims and defenses. However, once case evaluation was discontinued, there was no longer any evaluative component to the pre-trial settlement process, and parties were left with a choice to attend a court-conducted settlement conference or mediation to aid their pretrial settlement negotiations. Once courts stopped sending cases to case evaluation, attorney mediators proliferated and began hearing and assisting the parties to the mediation process in reaching a negotiated settlement.
Since January 2022, mediators have learned that in some cases the parties are appreciative of a neutral’s objective evaluation of the claims, defenses and counterclaims framed by the parties’ pleadings. This objective evaluation made by a mediator is commonly known as a “Mediator’s Proposal.” There is no express court rule or mechanism for the creation of a Mediator’s Proposal and, in many cases, it is unnecessary as a trained mediator is skillful in shepherding the parties to a resolution that they create and then embrace.
Further, a Mediator’s Proposal does not have attached to it any form of sanction or penalty for failing to accept the recommendation; indeed, it is nothing more than a recommendation and it may not be an evaluation in a literal sense. However, notwithstanding its limitations, situations arise during a mediation in which the Mediator’s Proposal is especially valuable. Examples of common situations in which the parties request that the Mediator generate a Mediator’s Proposal include cases in which one or more of the parties’ have egos or strong emotions which prevent them from fully engaging in the mediation process because of a refusal or unwillingness to concede any points, even in the privacy of a confidential mediation process.
While there are no sanctions involved in a mediator’s recommended settlement, the parties do end up with a settlement proposal that takes into consideration their own assessments of the claims, defenses and counterclaims in the proceeding. If nothing else, following a day of mediation, the parties can at least leave with a concrete proposal to resolve the case that has been generated by a neutral, third party, who has had the benefit of hearing from the parties and has an appreciation for issues which may not lend themselves to a precise mathematical calculation or which involve taking or refraining from taking actions that are beneficial to the situation and result in a settlement of the dispute.
There are a couple of elements commonly found in a Mediator’s Proposal that parties find valuable. When developing a Mediator’s Proposal, the mediator typically states that each party is to respond by a given deadline and only to the mediator as to whether the proposal is or is not acceptable. In this way, if a party rejects the proposal, that party will never know whether the proposal was or was not accepted by the other party or parties. This phenomenon assures that the party who rejects cannot use the mediator’s proposal against the party who accepts by asserting, “if you were willing to take/pay $X, why won’t you pay a little more (or take a little less)”, etc. Generally, once the deadline arrives, the mediator simply announces to the parties that the matter did or did not settle on the recommended terms. If the mediator’s proposal is accepted, counsel for the parties are left to document and implement the settlement; if either side rejects, the mediator’s proposal remains confidential, with only the parties knowing. They can then proceed with the case.
Additionally, if a mediator recommended settlement is requested, it generally doesn’t come up until after the mediator has conducted the mediation in accordance with the conventions that have been developed over the years for successful mediations. Before getting to a Mediator’s Proposal, the mediator can receive opening statements from the parties, prepare an agenda, gather facts, and facilitate ongoing discussions between the parties. The mediator can engage in productive reframing of issues, look for common interests, and assist the parties in considering consequences, all of which considerations are shared with the parties. The mediator can still help the parties understand their case and its strength and weaknesses, their opponent’s case as well as alternatives and options. The mediator can bring opposing perspectives to the parties during the negotiation process. The mediator can continue in the role of examining risks and exploring the process following mediation if there is a failure to obtain a negotiated settlement. All of these mediated techniques will be utilized for the mediation process before getting to a Mediator’s Proposal.
And, only in those cases in which the parties are unable to reach a deal and in which all concerned are amenable to obtaining a Mediator’s Proposal is the mediator authorized to prepare a recommended settlement. In this fashion, the mediation process provides the litigants with a sense of security and control and establishes ground rules for further settlement negotiations even if the Mediator’s Proposal is ultimately rejected.
So, while it’s still early in terms of our experience following the demise of the case evaluation process, there are appropriate cases for the Mediator’s Proposal such as the ones described above. In my personal experience there have been a number of situations in which the parties secretly were desiring the input of an objective third party-- such as a trained mediator-- to help them put a settlement on the table. For whatever reason, getting that proposal from an independent third party may be more palatable in some cases than conceding a point or requesting a relief that participants were unable to articulate.
For the foregoing reasons, consideration should be given to a Mediator’s Proposal in appropriate cases so long as the mediation process is carefully applied to the case prior to requesting that the mediator put a recommended settlement figure on the case.
————————
William D. Gilbride Jr. is of Counsel at Miller Johnson Attorneys, in the firm’s Business practice group. He has built a solid reputation resolving disputes before they reach a courtroom. He also is a seasoned litigator who has tried many cases in state and federal courts over business, contract, real estate and other matters.
Gilbride provides expert counsel regarding contracts, business and corporate law, real estate law, dispute avoidance and resolution, non-compete agreements, business torts, and zoning and land use law. He also handles patent, trademark and trade secret litigation.
He also served as general business and legal counsel for many for-profit and not-for-profit organizations in such matters as mergers, acquisitions, work-outs, and stock, asset and share exchange transactions. He has served as secretary and general counsel for two non-public corporate clients with more than 100 shareholders each. This experience is invaluable to larger, privately held organizations requiring counsel in handling the many issues affecting closely held corporations and minority shareholder rights.
Gilbride is a Fellow of the Michigan State Bar Foundation and the Detroit Metropolitan Bar Association. He also is an SCAO Supreme Court approved civil mediator and was inducted as a member of the American Board of Trial Advocates (ABOTA).
Gilbride received his Juris Doctorate from the University of Detroit and he received his bachelor’s degree from the University of Michigan. He was admitted to the Michigan bar and the federal bar for the U.S. District Court-Eastern District of Michigan in 1984, the U.S. Sixth Circuit Court of Appeals, and U.S. Tax Court in 1986.
Recent experience has shown that in mediation, since parties create their own resolution and because mediators have a duty to ensure that agreements reached are “durable," there is greater satisfaction by the parties to the dispute with the mediated outcome, and with that satisfaction comes a higher level of compliance than with court judgments. The mediation process empowers the parties to understand both sides of the dispute and to fully engage in the process themselves to resolve the disputes: in essence, the participants in the mediation process retain control over the outcome. Since the process is confidential, the parties can keep their matters—and their resolution—private. All of the foregoing virtues of the mediation process have been successful in developing mediated settlements of civil cases.
Prior to January 1, 2022, the Michigan court rules allowed for case evaluation. Under MCR 2.403, 2.404 and 2.503 case evaluation was established to obtain an “objective assessment" of the claims, defenses and counterclaims in a civil proceeding. The case evaluation process was in place for many years and it allowed litigants to receive an evaluation of their case from an experienced, independent third party (or panel) prior to trial. The theory for case evaluation was that the settlement recommended by the case evaluators would assist in allowing the parties to develop a settlement.
The case evaluation rules included a sanction provision which penalized a party for failure to accept the recommended case evaluation amount. A party who rejected case evaluation faced a financial penalty imposed by the court if they rejected the case evaluation amount and then failed to improve their economic position at trial by 10% or more when compared with the dollar amount of the case evaluation. This sanction provision was effectively removed on January 1, 2022, and ended up being the “death knell" of case evaluation. Once the sanctions provisions were removed from the case evaluation rules, case evaluation became meaningless, so the courts and the litigants stopped utilizing it as a pre-trial reality check on the merits of claims and defenses. However, once case evaluation was discontinued, there was no longer any evaluative component to the pre-trial settlement process, and parties were left with a choice to attend a court-conducted settlement conference or mediation to aid their pretrial settlement negotiations. Once courts stopped sending cases to case evaluation, attorney mediators proliferated and began hearing and assisting the parties to the mediation process in reaching a negotiated settlement.
Since January 2022, mediators have learned that in some cases the parties are appreciative of a neutral’s objective evaluation of the claims, defenses and counterclaims framed by the parties’ pleadings. This objective evaluation made by a mediator is commonly known as a “Mediator’s Proposal.” There is no express court rule or mechanism for the creation of a Mediator’s Proposal and, in many cases, it is unnecessary as a trained mediator is skillful in shepherding the parties to a resolution that they create and then embrace.
Further, a Mediator’s Proposal does not have attached to it any form of sanction or penalty for failing to accept the recommendation; indeed, it is nothing more than a recommendation and it may not be an evaluation in a literal sense. However, notwithstanding its limitations, situations arise during a mediation in which the Mediator’s Proposal is especially valuable. Examples of common situations in which the parties request that the Mediator generate a Mediator’s Proposal include cases in which one or more of the parties’ have egos or strong emotions which prevent them from fully engaging in the mediation process because of a refusal or unwillingness to concede any points, even in the privacy of a confidential mediation process.
While there are no sanctions involved in a mediator’s recommended settlement, the parties do end up with a settlement proposal that takes into consideration their own assessments of the claims, defenses and counterclaims in the proceeding. If nothing else, following a day of mediation, the parties can at least leave with a concrete proposal to resolve the case that has been generated by a neutral, third party, who has had the benefit of hearing from the parties and has an appreciation for issues which may not lend themselves to a precise mathematical calculation or which involve taking or refraining from taking actions that are beneficial to the situation and result in a settlement of the dispute.
There are a couple of elements commonly found in a Mediator’s Proposal that parties find valuable. When developing a Mediator’s Proposal, the mediator typically states that each party is to respond by a given deadline and only to the mediator as to whether the proposal is or is not acceptable. In this way, if a party rejects the proposal, that party will never know whether the proposal was or was not accepted by the other party or parties. This phenomenon assures that the party who rejects cannot use the mediator’s proposal against the party who accepts by asserting, “if you were willing to take/pay $X, why won’t you pay a little more (or take a little less)”, etc. Generally, once the deadline arrives, the mediator simply announces to the parties that the matter did or did not settle on the recommended terms. If the mediator’s proposal is accepted, counsel for the parties are left to document and implement the settlement; if either side rejects, the mediator’s proposal remains confidential, with only the parties knowing. They can then proceed with the case.
Additionally, if a mediator recommended settlement is requested, it generally doesn’t come up until after the mediator has conducted the mediation in accordance with the conventions that have been developed over the years for successful mediations. Before getting to a Mediator’s Proposal, the mediator can receive opening statements from the parties, prepare an agenda, gather facts, and facilitate ongoing discussions between the parties. The mediator can engage in productive reframing of issues, look for common interests, and assist the parties in considering consequences, all of which considerations are shared with the parties. The mediator can still help the parties understand their case and its strength and weaknesses, their opponent’s case as well as alternatives and options. The mediator can bring opposing perspectives to the parties during the negotiation process. The mediator can continue in the role of examining risks and exploring the process following mediation if there is a failure to obtain a negotiated settlement. All of these mediated techniques will be utilized for the mediation process before getting to a Mediator’s Proposal.
And, only in those cases in which the parties are unable to reach a deal and in which all concerned are amenable to obtaining a Mediator’s Proposal is the mediator authorized to prepare a recommended settlement. In this fashion, the mediation process provides the litigants with a sense of security and control and establishes ground rules for further settlement negotiations even if the Mediator’s Proposal is ultimately rejected.
So, while it’s still early in terms of our experience following the demise of the case evaluation process, there are appropriate cases for the Mediator’s Proposal such as the ones described above. In my personal experience there have been a number of situations in which the parties secretly were desiring the input of an objective third party-- such as a trained mediator-- to help them put a settlement on the table. For whatever reason, getting that proposal from an independent third party may be more palatable in some cases than conceding a point or requesting a relief that participants were unable to articulate.
For the foregoing reasons, consideration should be given to a Mediator’s Proposal in appropriate cases so long as the mediation process is carefully applied to the case prior to requesting that the mediator put a recommended settlement figure on the case.
————————
William D. Gilbride Jr. is of Counsel at Miller Johnson Attorneys, in the firm’s Business practice group. He has built a solid reputation resolving disputes before they reach a courtroom. He also is a seasoned litigator who has tried many cases in state and federal courts over business, contract, real estate and other matters.
Gilbride provides expert counsel regarding contracts, business and corporate law, real estate law, dispute avoidance and resolution, non-compete agreements, business torts, and zoning and land use law. He also handles patent, trademark and trade secret litigation.
He also served as general business and legal counsel for many for-profit and not-for-profit organizations in such matters as mergers, acquisitions, work-outs, and stock, asset and share exchange transactions. He has served as secretary and general counsel for two non-public corporate clients with more than 100 shareholders each. This experience is invaluable to larger, privately held organizations requiring counsel in handling the many issues affecting closely held corporations and minority shareholder rights.
Gilbride is a Fellow of the Michigan State Bar Foundation and the Detroit Metropolitan Bar Association. He also is an SCAO Supreme Court approved civil mediator and was inducted as a member of the American Board of Trial Advocates (ABOTA).
Gilbride received his Juris Doctorate from the University of Detroit and he received his bachelor’s degree from the University of Michigan. He was admitted to the Michigan bar and the federal bar for the U.S. District Court-Eastern District of Michigan in 1984, the U.S. Sixth Circuit Court of Appeals, and U.S. Tax Court in 1986.
Acclaimed author has his share of explaining to do
November 07 ,2024
Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.
:
Berl Falbaum
Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.
This time with a book titled “War,” in which he claims Donald Trump, after leaving the White House, called Vladimir Putin seven times and sent him COVID kits which would protect the Russian leader.
As usual, Woodward uses anonymous sources, except this time he mentions only one source and admits, according to The New York Times, he could not confirm the information with anyone else.
The Times stated 20 members of the career intelligence community as well as President Biden and former Trump administration officials had no knowledge of any contacts between Trump and Putin.
In the book, as he always does, Woodward uses direct quotes to report on controversial issues when no official transcripts are available. He has never explained this violation of journalistic ethics.
At one point, when President Biden’s son, Hunter, came into the room and chatted with his father, the President just “leaned back in his chair, closed his eyes and sighed.” We can assume Woodward uncovered this information for a secret vault in the White House.
The book also “reveals” profane-laced statements made by Biden when discussing Israel’s Prime Minister Benjamin Netanyahu. At one point, we are told, he called Netanyahu a “f---- liar.”
We will have to take Woodward at his word.
This book follows one called “Peril” (co-authored with Robert Costa) in which Woodward states Army General Mark Milley, the chairman of the Joint Chiefs of Staff, called his counterpart in China, General Le Zuocheng, to assure him that he (Milley) would alert him if the U.S. planned to attack China.
Before I go on, is there anyone reading this who believes that the highest-ranking U.S. military official who spent 40 years in the military, would undermine the president and the country by providing such a warning and vital secret information of a surprise attack to an arch-enemy?
I did not think so. Indeed, when asked during a congressional hearing if he would do that, Milley responded under oath, “Of course, I wouldn’t,” adding, “My oath is to support the Constitution of the United States of America against all enemies foreign and domestic.”
Woodward also tell us that despite Milley’s assurances, General Li “remained unusually rattled.” Since no source is cited, we must assume that Woodward was sitting in Li’s office in China when Milley made the call.
Throughout the years, Woodward has violated journalistic ethics, not only with his use of anonymous sources or direct quotes that cannot be proven, but also he frequently reported on what officials were “thinking” in meetings they attended decades earlier. At night, I cannot even remember what I “thought” at breakfast.
But I must give Woodward credit for being shrewd in convincing officials to talk to him off-the-record. His sources understand if they answer his questions, they will not have to worry about being implicated in the subjects Woodward explores because he cannot divulge their identities. Woodward cannot criticize his sources even if they are responsible for the very crises Woodward investigates. They have protection.
Woodward knows all that and he exploits this relationship expertly.
In one case, Woodward did reveal a source. In 1985, he said that the late Supreme Court Associate Justice Potter Stewart was his primary source for his book, “The Brethren,” which dealt with the court.
Woodward did so after Stewart died, when the man could not defend himself. Not only did Woodward violate the ethic of keeping sources secret -- you never reveal sources -- but his revelation can only be described as ugly, mean-spirited and self-serving. How does one point a finger at a man after his death? What does that say about character?
Woodward’s career has been rampant with his questionable reporting.
Let’s review another major case involving Woodward’s book, “Veil: The Secret Wars of the CIA, 1981-1987.”
In the book, published in 1987, Woodward claimed that the late CIA Director William Casey confessed to him about illegal arms sales to Iran in what was called the Iran-Contra scandal.
Casey, at the time, was in the hospital, paralyzed and gravely ill following brain surgery, but Woodward claimed he managed to visit Casey in his hospital room despite strict security.
“You knew, didn’t you?” Woodward wrote, inquiring whether Casey was aware that funds from the sale of arms to Iran were being diverted to the Nicaraguan contras. “His head jerked up hard,” Woodward wrote. “He stared, and finally nodded yes.”
“Why?” Woodward said he asked. Casey replied faintly, “I believed.”
Casey’s family and intelligence officials all said it was impossible for Woodward to have avoided security to gain access into Casey’s hospital room.
At the time, Time Magazine observed: “It was a perfect ending for Woodward’s dramatic spy saga. Too perfect in the view of some…In familiar Woodward style, ‘Veil’ reads as much like a novel as a work of journalism, with scenes, dialogue and characters’ thoughts re-created. Woodward says he talked to more than 250 people, but his revelations are not directly attributed to specific sources.”
When Woodward’s boss, the late Washington Post Executive Editor Ben Bradlee, spoke at the Detroit Press Club years ago, I asked him how Woodward gets away with his “journalistic compromises.” Bradlee admitted, “He [Woodward} takes some liberties.”
The major question is: How did Woodward become such a hero in journalism? Newsweek Magazine, in examining Woodward’s work, asked that question in a 2013 article headlined: “The Myth of Bob Woodward: Why Is this Man an American Icon?”
No one in the business has ever answered that.
(Full disclosure: I have not read “War.” I don’t read much fiction. This column is based on news stories discussing the book’s release due this week).
But I must confess that I am indebted to Woodward. When I was still teaching at Wayne State University, he provided me with lots of material for my classes on ethics in journalism.
—————
Berl Falbaum is a long-time political journalist and author of several books.
This time with a book titled “War,” in which he claims Donald Trump, after leaving the White House, called Vladimir Putin seven times and sent him COVID kits which would protect the Russian leader.
As usual, Woodward uses anonymous sources, except this time he mentions only one source and admits, according to The New York Times, he could not confirm the information with anyone else.
The Times stated 20 members of the career intelligence community as well as President Biden and former Trump administration officials had no knowledge of any contacts between Trump and Putin.
In the book, as he always does, Woodward uses direct quotes to report on controversial issues when no official transcripts are available. He has never explained this violation of journalistic ethics.
At one point, when President Biden’s son, Hunter, came into the room and chatted with his father, the President just “leaned back in his chair, closed his eyes and sighed.” We can assume Woodward uncovered this information for a secret vault in the White House.
The book also “reveals” profane-laced statements made by Biden when discussing Israel’s Prime Minister Benjamin Netanyahu. At one point, we are told, he called Netanyahu a “f---- liar.”
We will have to take Woodward at his word.
This book follows one called “Peril” (co-authored with Robert Costa) in which Woodward states Army General Mark Milley, the chairman of the Joint Chiefs of Staff, called his counterpart in China, General Le Zuocheng, to assure him that he (Milley) would alert him if the U.S. planned to attack China.
Before I go on, is there anyone reading this who believes that the highest-ranking U.S. military official who spent 40 years in the military, would undermine the president and the country by providing such a warning and vital secret information of a surprise attack to an arch-enemy?
I did not think so. Indeed, when asked during a congressional hearing if he would do that, Milley responded under oath, “Of course, I wouldn’t,” adding, “My oath is to support the Constitution of the United States of America against all enemies foreign and domestic.”
Woodward also tell us that despite Milley’s assurances, General Li “remained unusually rattled.” Since no source is cited, we must assume that Woodward was sitting in Li’s office in China when Milley made the call.
Throughout the years, Woodward has violated journalistic ethics, not only with his use of anonymous sources or direct quotes that cannot be proven, but also he frequently reported on what officials were “thinking” in meetings they attended decades earlier. At night, I cannot even remember what I “thought” at breakfast.
But I must give Woodward credit for being shrewd in convincing officials to talk to him off-the-record. His sources understand if they answer his questions, they will not have to worry about being implicated in the subjects Woodward explores because he cannot divulge their identities. Woodward cannot criticize his sources even if they are responsible for the very crises Woodward investigates. They have protection.
Woodward knows all that and he exploits this relationship expertly.
In one case, Woodward did reveal a source. In 1985, he said that the late Supreme Court Associate Justice Potter Stewart was his primary source for his book, “The Brethren,” which dealt with the court.
Woodward did so after Stewart died, when the man could not defend himself. Not only did Woodward violate the ethic of keeping sources secret -- you never reveal sources -- but his revelation can only be described as ugly, mean-spirited and self-serving. How does one point a finger at a man after his death? What does that say about character?
Woodward’s career has been rampant with his questionable reporting.
Let’s review another major case involving Woodward’s book, “Veil: The Secret Wars of the CIA, 1981-1987.”
In the book, published in 1987, Woodward claimed that the late CIA Director William Casey confessed to him about illegal arms sales to Iran in what was called the Iran-Contra scandal.
Casey, at the time, was in the hospital, paralyzed and gravely ill following brain surgery, but Woodward claimed he managed to visit Casey in his hospital room despite strict security.
“You knew, didn’t you?” Woodward wrote, inquiring whether Casey was aware that funds from the sale of arms to Iran were being diverted to the Nicaraguan contras. “His head jerked up hard,” Woodward wrote. “He stared, and finally nodded yes.”
“Why?” Woodward said he asked. Casey replied faintly, “I believed.”
Casey’s family and intelligence officials all said it was impossible for Woodward to have avoided security to gain access into Casey’s hospital room.
At the time, Time Magazine observed: “It was a perfect ending for Woodward’s dramatic spy saga. Too perfect in the view of some…In familiar Woodward style, ‘Veil’ reads as much like a novel as a work of journalism, with scenes, dialogue and characters’ thoughts re-created. Woodward says he talked to more than 250 people, but his revelations are not directly attributed to specific sources.”
When Woodward’s boss, the late Washington Post Executive Editor Ben Bradlee, spoke at the Detroit Press Club years ago, I asked him how Woodward gets away with his “journalistic compromises.” Bradlee admitted, “He [Woodward} takes some liberties.”
The major question is: How did Woodward become such a hero in journalism? Newsweek Magazine, in examining Woodward’s work, asked that question in a 2013 article headlined: “The Myth of Bob Woodward: Why Is this Man an American Icon?”
No one in the business has ever answered that.
(Full disclosure: I have not read “War.” I don’t read much fiction. This column is based on news stories discussing the book’s release due this week).
But I must confess that I am indebted to Woodward. When I was still teaching at Wayne State University, he provided me with lots of material for my classes on ethics in journalism.
—————
Berl Falbaum is a long-time political journalist and author of several books.
headlines Ingham County
- Michigan Supreme Court welcomes Justice Kimberly A. Thomas
- Warner attorney spearheads Floyd Skinner Bar Association
- Search for ‘good’ closely reaching a U.S. flashpoint
- 5Qs: Michigan Law Professor Michelle Adams’s new book ‘The Containment’ explores landmark Detroit school segregation case
- Constitutional law expert made his mark in the court and the classroom
headlines National
- SCOTUSblog founder Tom Goldstein accused of transferring millions in cryptocurrency after tax indictment
- ACLU and BigLaw firm use ‘Orange is the New Black’ in hashtag effort to promote NY jail reform
- Florida lawyer accused of stalking another attorney, texting rap songs with threatening lyrics
- Wisdom Through Face Paint: Documentary examines Juggalo gang allegations by DOJ
- No. 42 law firm by head count could face sanctions over fake case citations generated by ChatGPT
- Judge apologizes to slain jogger Ahmaud Arbery’s family after tossing charges against district attorney