Arbitration and Mediation
During the many years I have been litigating and handling arbitrations (along with many mediations), I reached several conclusions about the rules and practices in courts and tribunals. These conclusions led me to develop ideas about a system that brings together the best of both litigation and arbitration, and thereby optimizes adjudication litigation for most commercial disputes.
With the help of my wife, Marian Scheuer Sofaer, and our techie friend Jay Weil, we formed a company, Federal Arbitration, Inc. (FedArb), to offer arbitration services based on the principles we believe should govern such cases.
The FedArb system retains as a default those aspects of litigation that most parties in major commercial disputes seem to want to retain:
(1) a commitment to the principle that arbitrators must act like judges in following the law (by putting that requirement into contracts with all arbitrators who serve under our rules and providing an optional internal appeal on the merits);
(2) established procedural rights
-- specifically the Federal Rules of Civil Procedure, of Evidence, and of Appellate Procedure
– as the default system for parties unless they seek a more streamlined process.
(3) retaining arbitration’s advantages
At the same time, FedArb retains the potential advantages of arbitration by allowing the parties to choose their judges, the applicable law, the place of arbitration, informal procedures, limited discovery if desired, and confidentiality.
(4) ensuring that the processes and deadlines chosen by parties are followed
We achieve this objective by requiring that arbitrators agree in their contracts with FedArb not to delay their decisions beyond the time limits provided in the FedArb Rules or agreed to by the parties. We have signed up over fifty former federal judges and are building a list of the best private judges to serve a broad client base.