Apr 04, 2019
Litigate, Don’t Arbitrate?
Apr 04, 2019
By Robert Rosborough
As a mediator, it’s not surprising that I am often encouraging folks to explore alternatives to litigation. Of course, any mediator knows that there are situations where mediation is not going to work (even aside from the situation I often face, which is getting families to the table who are not in litigation.) Binding arbitration is different—it’s going to work, at least in the sense that there will be a resolution. Leaving aside consumer contracts and the like where arbitration is forced, many commercial contracts include an arbitration provision by the mutual choice of the parties, who see it as preferable to litigation. Howard Ullman urges us to rethink the unthinking inclusion of arbitration in our agreements. An experienced commercial litigator, he points out when arbitration might not work so well. Even if he may not change your mind in a particular instance, reading his article will leave you better prepared for potential problems. And of course, we welcome any and all responses, whether reinforcing his argument or offering a countervailing view.
Also on the litigation front this month, Dannielle Campbell, Houman Chitsaz and Constance Yu review the state of anti-SLAPP motions. I remember when California passed its anti-SLAPP law and many saw it as a welcome antidote to the abuse of the legal process to stifle first amendment rights. Since that time, certainly many of our readers have not been as unaware as I of how far and wide anti-SLAPP motions have spread. The authors give an overview of the procedural requirements and effects of these motions and gamely attempt to assess the evolving law on their use in federal court.
I encourage everyone to read this month’s profile of Laurie Vaala-Olsen, Head Librarian of the Marin County Law Library. While you will learn a little about Laurie, you will learn a lot about what a valuable resource the law library is and the many resources and programs it has. And for a change of pace, Tim Nardell (a big thank you to Tim for being guest editor this month) reviews several books, including a legal thriller by Marin lawyer and MCBA member Colin Claxon. Or check out Greg Brockbank’s political column, in which he assesses a few more Democratic presidential candidates, among other things. And if politics gets you down and you need to read something more uplifting, read Barrett Schaefer’s profile of the excellent Buckelew Programs or Tim’s recap of the annual Pro Bono Appreciation Awards, which includes several pithy quotes, including Sir Winston Churchill’s, “We make a living by what we get, we make a life by what we give.” I hope that inspires you to give in whatever form works for you. Don’t forget that if you are looking for pro bono opportunities, you can turn to the Marin Pro Bono Network.
Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent and HOA disputes. He maintains an estate planning, HOA and general advisory and transactional law practice focusing on personal and small business issues. Rob also teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.