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Suzanne Nusbaum
Expert IP Mediator and Arbitrator
Expert IP Mediator and Arbitrator


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I am sharing this message from my law professor friend in Nepal. 

I am forwarding this message from my law professor friend in Nepal:

Dear friends,

After repeated shocks and destruction, Kathmandu City and its surroundings are living a life of a sick chicken. However, Nepalese people have courage and confident to come out of this strife. Most people who have lost their everything, but have not ceased to smile. 

Our 55 students lost their houses. Fortunately, none of their dears have lost lives. However, they are living in makeshift tents. Four teachers have lost their houses, and six staffs. We have made them fixed temporarily. We are however working tirelessly. One of our building god damaged, and by now our engineers have fixed it. We are receiving shocks everyday six or seven time, and the one last week we had was powerful as that of the first day. We all however able to go out of the building unhurt. The  semiologists have urged to take precaution for sometime. So now we are working under a big tent. Students come and study here. We can accommodate 150 people here. We teaching peacefully.

The Disaster Relief Law Clinic is set up to help victims legally. Many of them have lost their property documents, passport, ID cards, bank cards, and so on. We are actively helping them in all these legal matters. I am personally engaged and directing students. The media has widely appreciated our genuine efforts. Over hundred students have been engaged in this mission. They are also providing helps to their colleagues who have become victims. The clinic is going to collect supports to 3500 school students in remote districts. The school buildings have been fully destroyed here. We are buying uniforms, books, foods and makeshift tents for them.

Now I would frankly request for you assistance. Anything you can contribute will help us significantly. The contribution made by you will be used to support our students who have no place stay, and have nothing to wear. We will also use your contribution to support poor schools where our students work as practical or field works. Most of these children have been living in a very difficult situation. We will duly audit and report back to you. Your contribution will displayed in our website. 

Please take it not compulsive. This is a voluntary effort.
Any support from side would be appreciated. 
For financial support the following bank account can be used.

A. Name of the Organization; Kathamandu School of Law
B. Name of the Bank: Nepal Investment Bank, Pulchok Branch.
C. Account No. 00405010015307
D. Swift Code: NIBLNPKT

With best

Yubaraj Sangroula
Kathmandu School of Law

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Suzanne Nusbaum commented on a post on Blogger.
I like to run down the "standard provisions" with the parties as we are developing our agenda for what needs discussion. That way you get buy in at the beginning, or identification of things that my be a problem. and need to be worked on. 

Evident Partiality in Arbitration
Look at the decision in Thomas Kincade Co. v. White, _ F3d _, No. 10-1634 (6th Cir. April 2, 2013).
It is a reminder that, while the arbitration is pending, arbitrators should not take on any new work from any party or its attorneys without consent of all parties, even if the arbitration service provider approves.
As the court relates, "The arbitration itself was a model of how not to conduct one."
I always ask all persons in the hearing room to turn off their cellphones, and watch while they do it. That would have prevented the surreptitious recording that occurred in this case.
It is critical to hire arbitrators who can expeditiously move a case fairly and impartially to award, particularly the chair. Although the chair needs to have some familiarity with the subject matter, it is more important to have good case management skills.

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The First Lesson from the HP v. Oracle Trial
By Suzanne K. Nusbaum of Impartia
I have been watching the Hewlett Packard v. Oracle Corporation trial in the California Superior Court, Santa Clara County, Case no. 1-11-CV-203163.
The case results from a failed settlement in Hewlett-Packard Company v. Hurd, SCCSCT Case No. 1-10-cv-181699. That case was dismissed with prejudice on September 22, 2010 following the execution of a written settlement agreement. The settlement negotiations in the Hurd employment case were handled directly by the parties and their attorneys.  In dispute in this pending case is Oracle’s compliance with paragraph 1 of the Hurd settlement agreement.
The courtroom is filled with partners of major national law firms, whose hourly rates you can imagine. Each side has a large team of attorneys and support personnel, in house counsel and many witnesses.
HP has been presenting its case for breach of this settlement agreement, methodically offering into evidence emails of the negotiations and testimony by the negotiators about how the terms evolved and what they mean. There are hundreds of exhibits. The most crucial documentary evidence to date interpreting the language of paragraph 1 is contained in an email from Oracle’s counsel, Dorian Daley to HP.
Had these negotiations occurred as part of a mediation, all of this evidence would be inadmissible. The hundreds of thousands of dollars spent in discovery and voluminous trial presentation could have been saved.
The California Evidence Code § 1119 provides the protection. It reads, in pertinent part:
(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any … civil action, ….
(b) No writing … that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any … civil action… .
(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
At the conclusion of the July 7th  trial session, Judge Kleinfeld urged the parties to attempt settlement again. He relayed an offer from the prior settlement conference judge to meet with the parties at no charge to help them resolve the dispute.
Communications in a settlement conference do not fall under mediation’s statutory protection from disclosure and discovery. Evidence Code § 1117 specifically provides that mediation confidentiality does not apply to a settlement conference pursuant to Rule 3.1380 of the California Rules of Court. And a recent federal case, In re MSTG, Misc. No. 996 (Fed. Cir. 4/8/2012), holds that there is no settlement negotiation privilege that would make negotiation documents or discussions inadmissible.
When negotiating, you should have a written mediation agreement such as that used in The Facebook Inc. v. Pacific Northwest Software, Inc., 640 F3d 1034 (9th Cir. 2011). There the mediation agreement which everyone signed before commencing mediation provided that: “all statements made during the course of the mediation or in mediator follow up thereafter at any time prior to complete settlement of this matter are privileged settlement discussions… and are nondiscoverable and inadmissible for any purpose including in any legal proceeding… No aspect of the mediation shall be relied upon or introduced as evidence in any arbitral, judicial, or other proceeding.” Id. at 1041. The Ninth Circuit Court of Appeals held that this mediation confidentiality agreement precluded the Winkelvoss twins from introducing in support of their claims any evidence of what Facebook said, or did not say, during the mediation. Without such evidence, they had no case. Mediation confidentiality brought that litigation to an end.
Label your mediation communications as confidential pursuant to Evidence Code § 1119. Enlist the services of the mediator to clarify any ambiguous terms and conditions.
And hopefully you will avoid the morass that HP and Oracle find themselves in today.
The first lesson to be learned from the HP v. Oracle case is for a timely and cost effective resolution to your dispute - to protect the confidentiality of your settlement negotiations, save money and ensure swift enforcement of your settlement - use mediation.
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