This article was first published on the Securities Arbitration Alert (SAA) blog, here.
Practising Law Institute’s (“PLI”) annual securities arbitration seminar took place via live Webcast on September 10th. Although the pandemic moved the event to a virtual-only format, the event as usual was packed with content of interest.
Once again, the annual full-day program, Securities Arbitration 2020, was chaired by Sandra D. Grannum (Faegre Drinker Biddle & Reath LLP-NJ), who fashioned a program supported by the insights and commentary of a fine faculty. The key topics included (ed: repeated verbatim): Recent Developments in FINRA Arbitration and Mediation; Diversity, Inclusion and Elimination of Bias in Arbitration and Mediation; Ethical Issues Concerning Arbitrator Disclosures and Arbitrator Replacement; Arbitration and Mediation Settlement Practicum; Products Practicum: Tips for Trying Product “De Jour” Arbitrations; and Hot Topics and Future Trends in Securities Arbitration in 2020. This year's group of speakers – as has been the case in recent years – was peppered with FINRA Dispute Resolution Services (“DRS”) personnel, and the session topics focused heavily on FINRA arbitration and mediation rules and procedures. The program was attended mostly by attorneys – 53% of the participants. We focus our analysis on the FINRA update session.
Recent and Upcoming Developments in FINRA Arbitration and Mediation
This panel was moderated by FINRA DRS Executive Vice President Richard W. Berry and featured as faculty: Stefanie Kendall – FINRA DRS; Ellyn S. Roth – Arbitrator and Chairperson; Beverly Jo Slaughter – Wells Fargo Senior Managing Counsel; and Andrew Stoltmann – Stoltmann Law Offices, P.C. The group covered (ed: listed verbatim): case filings and trends; what’s new with FINRA dispute resolution; FINRA in the era of COVID-19; proposed rule changes filed with the SEC; recently approved rule changes; technology: new and upcoming dispute resolution portal features; updates on rule filings including expungement, NARs, and unpaid awards; and best practice tips for parties and arbitrators. Here are just a few news items from the session:
COVID Impact: Mr. Berry stated that: “health and safety is our number one priority.” He reported that in-person hearings through December 4 have been administratively cancelled, but that cases could nonetheless proceed in person if all participants agreed to do so and exercised required mitigation steps. Specifically, the FINRA Website now states: “Note that if all parties and arbitrators agree to proceed in-person based on their own assessment of public health conditions, the case may proceed provided that the in-person hearing participants comply with all applicable state and local orders related to the COVID-19 pandemic.” An attendee asked: “Pending cases seem to be piling up since March, when in-person hearings started being cancelled. Given that many cases are not taking advantage of the Zoom option, is DRS concerned about the pending case buildup?” Mr. Berry responded that DRS is well-positioned to handle a ramp-up to in-person hearing resumption. For example, the forum has been adding arbitrators and chairpersons to the roster during the pandemic, and he noted that case filings are “still far, far, below” past years.
Poll on Virtual Mediation Hearings: A live poll revealed interesting data:
- Have you participated in a video mediation? No = 89%
- Would you be willing to do a Zoom mediation? Yes = 93%
- If no, what are your concerns?
- Want client/mediator in the same room: 36%
- Uncomfortable with technology: 27%
- In-person mediation is more effective: 18%
- Other: 18%
- Security concerns: 0%
- Other side won’t take process seriously: 0%
It appears that participants have not yet had extensive experience with virtual mediations, but are more than willing to try it out. Mr. Stoltmann, who served previously as PIABA President, said he was surprised he liked Zoom for mediation as much he does. He added that arbitration, however, presents some challenges, such as judging witness credibility.
Coming Changes: The special expungement roster and policy codification proposed rule changes, which were approved by the Board September 2019 (see our coverage in SAA 2019-38 (Oct. 9)), will be filed “very soon” and before end of September. Recall that a post-meeting memo from FINRA President and CEO Robert W. Cook reported that the Board: “approved proposed amendments to the Codes of Arbitration Procedure to create, among other things, a roster of arbitrators with enhanced training and experience from which a panel would be selected in certain instances to decide an associated person’s request to expunge customer dispute information.”
(ed: *The “Arbitration and Mediation Settlement Practicum” session moderated by Christine Lazaro, Clinical Professor at St. John’s Law School (and an Alert Board of Editors member), featured an excellent live demo of a Zoom mediation, the very topic of this Alert’s feature article. **Kudos to the faculty and PLI. Despite the limitations of conducting a day-long seminar online, they managed to present an interesting, engaging program. ***The program is available on-demand at https://www.pli.edu.)
George H. Friedman is the publisher and Editor-in-Chief of the Securities Arbitration Alert, a weekly online publication covering the latest developments in financial services arbitration and mediation. He is also the principal of George H. Friedman Consulting, LLC, providing expert advice on arbitration and mediation in general and the FINRA dispute resolution forum in particular.
He is former Executive Vice President - Dispute Resolution of the Financial Industry Regulatory Authority (“FINRA”), a position he held through January 2013. He held the same title at NASD, which consolidated with NYSE Member Regulation to form FINRA in 2007. In this capacity, he was in overall charge of FINRA's dispute resolution program, carried out by the company's four regional offices and 72 hearing locations in the United States and abroad, 200 employees, and an annual budget of $50 million. He also served as Secretary of the Securities Industry Conference on Arbitration. He has been referred to by the U.S. Court of Appeals—4th Circuit as a “leading arbitration expert.” He is a member of the American Arbitration Association's National Roster of Neutrals.
Mr.Friedman is an Adjunct Professor of Law at Fordham Law School, where he has taught a course on alternative dispute resolution since 1996. He is Chairman of the Board of Directors of Arbitration Resolution Services, Inc. of Coral Springs, Florida. Arbitration Resolution Services is an innovative online arbitration services company facilitating an affordable alternative to costly courtroom litigation and in-person arbitration for resolving Business-to-Business, Business-to-Individual, and Vehicle and Property Damage disputes. ARS is unique in that its entire process can be completed online through the company website.
In his extensive dispute resolution career, he previously held a variety of positions of responsibility at the American Arbitration Association, most recently as Senior Vice President from 1994 to 1998. He joined NASD in 1998 as Senior Vice President of NASD's Dispute Resolution Division, and was named Executive Vice President in 2002.
Mr. Friedman received a B.A. in Political Science from Queens College, and a Juris Doctor from Rutgers Law School - Newark, where he was an editor of the Law Review. He is admitted to the New York and New Jersey Bars and the United States Supreme Court, and is a Certified Regulatory and Compliance Professional. Mr. Friedman is a member of the Securities Experts Roundtable, and of several bar associations. He is past chair of the Committee on Alternative Dispute Resolution of the New York County Lawyers Association. He is a member of the Banking Advisory Committee of Bergen (NJ) Community College.
Mr. Friedman has lectured extensively on the subject of alternative dispute resolution, and has the distinction of being one of the architects of the American Arbitration Association’s Due Process Fairness Protocols for both employment arbitration and health care dispute resolution, and assisted in creating the Consumer Due Process Protocol. He has published often, with articles appearing in the Securities Arbitration Commentator, the ABA's Dispute Resolution Magazine, the New York Law Journal, the Rutgers Law Review, and the National Law Journal. He has blogs at Arbitration Resolution Services, Inc., the Securities Arbitration Commentator, and the World Future Society, among others.