Columns

We all have multiple opportunities each day to either engage in a conflict, or to turn the moment of tension into an opportunity to collaborate.  Recently, Judge Timothy Connors of the Washtenaw County Circuit Court and I were reviewing the space the courthouse is setting aside as a sanctum for the jade plant and Irish shamrock plant Judge Connors is dedicating to the space. 

We all have multiple opportunities each day to either engage in a conflict, or to turn the moment of tension into an opportunity to collaborate.  Recently, Judge Timothy Connors of the Washtenaw County Circuit Court and I were reviewing the space the courthouse is setting aside as a sanctum for the jade plant and Irish shamrock plant Judge Connors is dedicating to the space. 

As we reviewed the space, and the Narcan display that currently occupies it, a young man approached us.  He was angry and offended.  He had been listening to us, and believed he heard Judge Connors say that the court should eliminate the Narcan display.  In a belligerent tone, George W. told us how important the Narcan display was. Firstly, because George’s life had been saved a couple of weeks prior through the use of Narcan. Secondly, because the Narcan display is on the second floor, where Judge Carol Kuhnke holds Drug Court, and the participants in Drug Court are the people in the courthouse most likely to need Narcan.  So, its proximity to the Drug Court is important. Having delivered his message, and the pain imbedded in it, George walked a short distance away.

After three invitations from Judge Connors to engage in a conversation, George finally walked back over. Initially, George was unwilling to engage in conversation. George insisted he had said his piece and didn’t want to talk to us. His contempt was evident, and he felt something vital to him had been disrespected.  George’s attitude invited conflict.  

As Judge Connors drew George back into a conversation, he began with an apology and gently asked George to explain to him what the Narcan display meant to him. George’s explanation included his mistaken belief that Judge Connors was suggesting the display be eliminated from the building, rather than the true discussion, which was whether the display could be moved a few feet. Once the misunderstanding was cleared up, Judge Connors saw the link between the life-saving value of the Narcan, and the intent in creating a sanctum, which is life-affirming. He invited George to collaborate with him on a joint display that could encompass both George’s passion for having the Narcan on the second floor in plain view, and Judge Connors’ desire to provide a space for reflection and renewal at the courthouse. Reflection and renewal is a befitting legacy for the judge who brought Peacekeeping to our courthouse.  

George teared up as his anger subsided and he returned to a calm state of mind where he was able to tap into his creativity and make suggestions about how to craft a solution that satisfied the individual needs through a joint goal. With some discussion, they arrived at a plan, shook hands on it, and a tearful George walked away.

This interaction was packed with powerful lessons:  the heat we can ignite over a misunderstanding.  The tools that transform a loaded situation into an opportunity for deeper understanding and mutual respect. The value of a heartfelt apology.  How to invite someone to participate in a solution.  And, the healing value of walking in the other person’s shoes.  George went from feeling marginalized to feeling that his perspective had been understood and incorporated into the solution he helped devise.  His heart was much lighter.  And Judge Connors felt that the sanctum he is creating has even more meaning because of the inclusion of the Narcan display and what it represents.

As we go through our day, we all encounter chaotic situations and moments of discord.  The question to ask ourselves is:  am I going to continue the chaos, or am I going to transform the chaos into calm?  Chaos is an invitation to engage our creativity to find a way to lower the other person’s defenses.  

With lowered defenses, the other person can also engage their creativity to come up with a resolution that restores calm.  It took several attempts with George before he was willing to lower his defenses, and Judge Connors kept offering pathways to calm until George heard one he found acceptable.  With both of their creative minds engaged, a solution was reached that ended up giving the space even more meaning than the original intent.  The moment took about 10 minutes; the lessons are now part of the permanent space.  

You are all invited to visit the sanctum when it is established.  It will be in the main lobby of the second floor of the courthouse.

 The Irish shamrock represents spiritual growth and renewal.  The jade plant represents resilience.  You are invited to take a small cutting from it if you wish to propagate your own jade or Irish shamrock plant.

Teresa Killeen is the judicial attorney for Hon. Julia B. Owdziej of the Washtenaw County Trial Court.  She is a graduate of the UM Law School, and serves as the editor for the Washtenaw County Bar Association’s bimonthly legal publication.  She can be reached at killeent@washtenaw.org or at 734-222-6921.

At about 6:35 p.m. (EDT) on September 20, 2024, the State of South Carolina plunged an IV into the veins of Khalil Divine Black Sun Allah, known as Freddie Owens, and injected the deadly drug pentobarbital into his veins. Within minutes he was dead.

At about 6:35 p.m. (EDT) on September 20, 2024, the State of South Carolina plunged an IV into the veins of Khalil Divine Black Sun Allah, known as Freddie Owens, and injected the deadly drug pentobarbital into his veins. Within minutes he was dead.

Four days later, the State of Missouri injected five grams of the same drug into the bloodstream of Marcellus “Khaliifah” Williams. He was dead in minutes as well.

Owens, 46, and Williams, 55, had three other things in common: Both had been convicted of murder, both might very well have been innocent, and, in both cases, the appellate powers to be, including the U.S. Supreme Court, rejected pleas to stay the executions to permit investigations into new evidence.

Thus, works our “justice” system.

Let’s look at Owens first.

Owens was convicted of killing a Speedway gas station clerk, Irene Graves, a 41-year-old single mother of three, during a string of robberies by two masked men on Halloween night in 1997. Owens, then only 19, allegedly fired a single shot to Graves’s head, killing her
because she couldn’t open the safe. The two robbers escaped with $37.29 from the cash register.

Prosecutors had no forensic evidence implicating Owens and surveillance footage showed two masked men but they were not identifiable. The only evidence against Owens came from Owens’ accomplice and co-defendant, Steven Golden, who testified that Owens fired the fatal shot.

Not revealed to the jury during the trial was that Golden had a secret deal with prosecutors that he would not face the death penalty if he testified against Owens.

But two days before the execution, Golden made public a signed affidavit in which he said that Owens was innocent. He wrote:

“I’m coming forward now because I know Freddie’s execution date is September 20 and I don’t want Freddie to be executed for something he didn’t do. This has weighed heavily on my mind and I want to have a clear conscience.”  

Golden added that Owens was not even in the store at the time of the murder/robbery.

Golden said he was high when police questioned him and was pressured to point the finger at Owens.

“I substituted [Owens] for the person who was really with me,” Golden said, concealing the identity of the real murderer because he feared his associates “might kill me.” He still did not want to name the shooter out of fear of retaliation.

The governor, Henry McMaster, prosecutors and appeals courts, including the U.S. Supreme Court (with Justice Sonia Sotomayor dissenting), rejected last minute appeals to save his life, stating that despite new evidence, they were all convinced other evidence proved Owens guilty.  They stated there was “nothing exceptional” -- the legal standard to approve a stay of execution -- about his case.

Now, to Williams.

Williams was convicted of killing Felicia Gayle, a former reporter for The St. Louis Post-Dispatch on August 11, 1998.

Citing problems with jury selection (possible racism), ineffective defense representation, DNA which did not match forensic evidence, the St. Louis prosecutor --- please read “prosecutor” --- called for overturning the conviction.  That office was joined by relatives of the victim as well as jurors who found Williams guilty.  All called for giving Williams a life sentence so further investigations could be conducted.

Again, like in the Owens case, the U.S. Supreme Court, a few hours before the execution, denied Williams’ appeal.  This time Sotomayor was joined in her dissent by Elena Kagan and Kentanji Brown Jackson.

Here is the major point:

What possible negative consequences could result if the courts had issued stays and permitted investigations to continue in these cases?

At the worst, the executions would be delayed by a few months and, at best, innocent lives might have been spared.  

(I am not arguing the case for or against capital punishment, although, in the interest of full disclosure, I am opposed to it.)

These cases remind me of the institutional obstinacy of the legal profession in another injustice which I worked on intensely.

I wrote a book about Alton Logan, an African-American Chicago man, who did 26-½ years in prison for a murder he did not commit. After finding Logan guilty, the 12-member jury had to consider the death penalty but its vote had to be unanimous. It voted 10-2 to put Logan to death. Two votes saved him from death row.

The issue: Four attorneys knew from the start that Logan was innocent because their client committed the murder. He confessed to them.  

Not wanting to violate the “ethical” code of lawyer-client confidentiality, the attorneys wrote an affidavit that Logan was innocent, locked it in a strong box for more than 26 years, but came forward after their client died in prison where he was serving time for two
other murders. After several court hearings, all charges against Logan were dropped and he was released.

In a sense, Logan was “lucky.” Another man, Lee Wayne Hunt, in North Carolina, was imprisoned under similar circumstances -- for a double murder he did not commit. When the real murderer died, his lawyer voluntarily went to court and testified that Hunt was innocent. Cumberland County Superior Court Judge Jack A. Thompson not only would not accept the testimony but reported the attorney to the bar for violating lawyer-client confidentiality.

I called Judge Thompson several times to interview him, but he did not return my phone calls. I understood that perfectly. Under the circumstances, I would not have talked to me either.

I was just starting the process of writing a book on Hunt when his lawyers contacted me with the news that he had died in prison after serving 30 years. Justice!

I find the callous reasoning on this issue unconscionable. We can’t let an innocent person knowingly -- the key word being “knowingly” -- rot in prison when the guilty party has been identified. It is bad enough to make mistakes and cause unbelievable and condemnable injustices -- and these numbers are in the thousands. I was told by experts during my research on the book that between 10,000 and 30,000 innocent people were serving prison sentences. Or consider: At least 200 people sentenced to death since 1973 were later exonerated, according to the Death Penalty Information Center.

I started a one-person campaign to change the legal ethic on this issue. Over several years, I contacted bar associations, legal committees, judges, legal grievance committees, even the Michigan Supreme Court which, I was told, debated my petition “robustly” but decided to do nothing. The justices are obviously comfortable with letting the innocent languish in prison.

My point is that the code can be changed -- and changed very easily -- without compromising lawyer-client confidentiality. Logan and I make recommendations in the book which would eliminate the risks of letting the guilty go free without punishing the innocent.

Now, I understand the symbolism of having Lady Justice with a blindfold. But perhaps we ought to remove it to let her see what the hell is going on in our so-called justice system.

—————

Berl Falbaum is a long-time political journalist and author of several books, including “Justice Failed: How ‘Legal Ethics’ Kept Me in Prison for 26 Years.”

Ohio Governor Mike DeWine recently published an Op-Ed in The New York Times that left me shedding plenty of tears.

Ohio Governor Mike DeWine recently published an Op-Ed in The New York Times that left me shedding plenty of tears.

DeWine, a Republican, was apparently motivated to write the article following ugly, false charges made by Donald Trump and his running mate, J.D. Vance, that Haitian immigrants in Springfield, Ohio, where DeWine was born, are eating the pets of Springfielders.

With lots of nostalgia, DeWine devotes many words to the fond memories he has of Springfield, and the hours he and his wife, when dating, spent enjoying the local theater and restaurants.  He tells us:

“The Springfield I know is not the one you hear about in social media rumors. It is a city made up of good, decent, welcoming people. They are hard workers -- both those who were born in this country and those who settled here because, back in their birthplace, Haiti, innocent people can be killed just for cheering on the wrong team in a soccer match.”

I was at the stage of swallowing often and hard as I read his moving words.  When he gets to the subject of “pet eating,” he writes:

“It is disappointing to me that Springfield has become the epicenter of vitriol over America’s immigration policy, because it has long been a community of great diversity. Fran [his wife] and I were reminded of this when we attended Mass at St. Raphael…and stopped at the nearby Groceryland on our way home. We talked with community members from many backgrounds who are understandably concerned about the negative things being said about their city in news reports and on social media.”

Given the bomb and other violent threats that followed, DeWine wrote that as governor, “I have posted Ohio Highway Patrol troopers in each school building in Springfield so the schools can remain open, teachers and children can feel safe, and students can continue to learn.”

Then I read, “As a supporter of former President Donald Trump and Senator J.D. Vance, I am saddened by how they and others continue to repeat claims that lack evidence and disparage the legal migrants living in Springfield.
This rhetoric hurts the city and its people, and it hurts those who have spent their lives there.”

I reread those sentences several times.  Yes, “As a supporter…” is in the present tense.  He still backs the Trump-Vance ticket.  He explained:

“The Biden administration’s failure to control the southern border is a very important issue that Mr. Trump and Mr. Vance are talking about and one that the American people are rightfully deeply concerned about. But their verbal attacks against these Haitians — who are legally present in the United States — dilute and cloud what should be a winning argument about the border.”

So, DeWine implies that he is not so much offended by the attacks on Haitians in Springfield, but rather that be believes the smears are not an effective political strategy. Stick to attacking Biden-Harris on the porous Southern border.

Now, that brought more tears, tears of a different kind.

With tissues in hand, I consumed lots of media coverage on this Op-Ed with headlines blaring how DeWine blasted Trump and Vance, but none pointed out that he still backs the two.  I moved on.

Desperately trying to control my emotions, I wondered what DeWine thought about Trump’s role in the January 6 insurrection and also his efforts to overturn the 2020 election.

DeWine condemned the insurrection but I could not find any comments by him about Trump’s role in inciting it or doing nothing for 187 minutes -- more than three hours -- to stop it.

As to the election, he believed that Biden won but got into a heated argument with a CNN news anchor when he claimed Trump had legitimate reasons to question the results.

Now the tears came down in cascades but they changed from tears of sympathy when DeWine discussed his feelings for Springfield and its residents to tears of disgust for his political hypocrisy.

I seldom read comments at the end of news articles, but I did scan those at the end of DeWine’s piece (about 200 or so).  All but a handful condemned him for his continued support of Trump and Vance, with “Chris” writing:
“[DeWine] decries the actions of Trump/Vance, yet continues to support them. That's all I needed to see -- beautiful prose rendered hollow by craven political cowardice.”

Those who have been reading these ramblings through the Trump years, know what’s coming.  DeWine is the next recipient of our Pence Outstanding Hypocrite Award (POHA).

But the certificate which accompanies this honor (dishonor) will be tear-drenched.


—————

Berl Falbaum is a long-time political journalist and author of several books.

With this column, we are announcing another winner (loser) of our coveted (despised) Pence Outstanding Hypocrite Award (POHA) and you might want to sit down as you read about our latest choice.

With this column, we are announcing another winner (loser) of our coveted (despised) Pence Outstanding Hypocrite Award (POHA) and you might want to sit down as you read about our latest choice.

We confess: We are somewhat at a loss for words in bestowing this particular honor (dishonor).

It gives us chills. We made this decision with lots of misgivings, and it leaves us with much sadness not to mention fear given what we expect in reactions from the candidate’s followers which number in the millions, if not billions.

The POHA goes to a -- nay, the -- “cultural guru” in this country, maybe even the world.

With trembling fingers on the keyboard, we announce: The winner (loser) is… Oprah.

There we did it. That Oprah. The only Oprah. The one who, in all humility, has appeared on the cover of her magazine for two decades.

Yes, the one who can solve heart-rending, emotionally searing personal disputes between TV commercials (sometimes called exploitation) to advising Prince Harry on the relationship with his late grandmother, Queen Elizabeth II, and his father, King Charles III, to recommending the books we must read.

Admittedly, we had several sleepless nights before making this earth-shaking decision. So, how did our one-member Board of Directors choose her for a POHA?

Well, Oprah, as we expected she would, made headlines when she appeared as a “surprise” speaker at the Democratic National Convention (DNC).

She let Donald Trump have it -- in Oprah style. The media were left breathless. Analyst after analyst could not find enough accolades to describe and applaud her condemnations.

We were told she “electrified” the crowd, advising among other admonitions:

"More than anything, you know, this is true, that decency and respect are on the ballot in 2024, and just plain common sense. Common sense tells you that Kamala Harris and Tim Walz can give us decency and respect."

She urged voters to further choose "optimism over cynicism," "common sense over nonsense" and "the sweet promise of tomorrow over the bitter return to yesterday."

She blasted "ridiculous tweets and lies and foolery…”

So far so good. But…

It has come to light that in January 2000, when Trump was flirting with running for president, Oprah was a bit kinder to Trump.

After Trump sent her an excerpt from an upcoming book he planned to publish, “The America We Deserve,” in which he said she would be his first choice for vice president, she responded with the following hand-written note:

“Donald -- I reviewed the book excerpt. I have to tell you, your comments made me a little weepy. It’s one thing to try and live a life of integrity -- still another to have people like yourself notice. Thank you.”

Then she added: “Too bad we’re not running for office. What A TEAM!”

We agree on one point: It makes us a little weepy to cite “integrity” and Trump in one sentence. Actually, it makes us more than weepy.

While a point has been made that she wrote the note 23 years ago, Oprah defended doing so in a March 2023 TV interview. That was after such Trump misdeeds as January 6, lying about winning the election, two impeachments, endless corruption, thousands of lies, sexual perversion, racism, misogyny, and so much more.  She said:

“When I heard that this letter was now going to be part of a book, I thought ‘Oh, wasn’t that nice of me to write a note.’  That’s what I thought, because I’m always like ‘Oh I should write a note. The person did this, or I should write a note.’ So, I’m really happy that I wrote a note.”

This defense came even after she endorsed Obama in 2008, and Hillary Clinton instead of Trump in 2016.

One can’t miss a weeping opportunity to be in a book written by a man of “integrity.”

Let’s be clear, it’s not like she was ignorant about Trump’s rectitude, honor, ethics (synonyms for integrity) or wholesome life.  She had known Trump for decades, ran in the same high-society circles, had “cuddly” photos taken together, and kissed each other’s rings.  
While she was constantly on the cover of O, her magazine, he was on the front pages of New York’s tabloids.

And Trump was reciprocal with his admiration for Oprah, stating:

“Oprah. I love Oprah. Oprah would always be my first choice [as vice president]. If she’d do it, she’d be fantastic. I mean, she’s popular, she’s brilliant, she’s a wonderful woman. I mean, if she would ever do it. I don’t know that she would ever do it. She’s got, you know. She would be sort of like me.”

The line “she would be sort of like me” has got to hurt. Maybe not.

Given all of the above, we expect that even Trump is confused about her position and can use some “Oprah advice” whether to blast or commend her.

Which brings us to Georgia Governor Brian Kemp who refused to help Trump overturn the election in his state in 2020.

As expected, Trump let loose with his insults, calling the Georgia governor "Little Brian Kemp,” adding, "He’s a bad guy. He’s a disloyal guy and he’s a very average governor.” He also attacked Kemp’s family.

Kemp has decided that Trump is more important than his family and endorsed the former president.

Thus, he receives a POHA and an invitation to appear on a special Oprah show.

—————

Berl Falbaum is a long-time political journalist and author of several books.

Arbitration, traditionally viewed as a streamlined alternative to court, is widely used in commercial, construction, and international disputes. Its appeal lies in its perceived efficiency, confidentiality, and potential cost savings.

Arbitration, traditionally viewed as a streamlined alternative to court, is widely used in commercial, construction, and international disputes. Its appeal lies in its perceived efficiency, confidentiality, and potential cost savings. However, as arbitration has become the preferred method for resolving complex disputes involving multiple parties, such as mass arbitration and complex commercial matters, the process has in many cases become as cumbersome and expensive as litigation. Long discovery phases, voluminous motion practice, and delays in scheduling hearings are some of the key issues. To address these challenges, the role of a Process Arbitrator has emerged, offering a promising solution to manage arbitration proceedings more effectively.

In essence, the Process Arbitrator ensures that procedural disputes—whether regarding discovery, scheduling, or other pre-hearing motions—are handled efficiently and fairly. This structure prevents procedural disputes from bogging down the substantive elements of the case and enables a more collaborative arbitration process.

The skill set of a Process Arbitrator is distinctly different from that of a substantive arbitrator. While a substantive arbitrator is typically an expert in the subject matter of the dispute, the Process Arbitrator is an expert in procedural efficiency and dispute management. The Process Arbitrator must have a deep knowledge of arbitration rules, discovery processes, and case management techniques. Their role is to ensure that the procedural elements, such as scheduling, discovery, and pre-hearing motions, are handled efficiently. This requires strong organizational and communication skills, as well as the ability to resolve procedural disputes quickly and fairly without delving into the merits of the case. On the other hand, the substantive arbitrator must focus on understanding the intricate details of the case, analyzing evidence, and applying the relevant laws to resolve the dispute.

Another significant difference in focus is that the substantive arbitrator is responsible for determining the outcome of the case based on its merits, which requires an in-depth engagement with the factual and legal arguments presented by both parties. By contrast, the Process Arbitrator focuses exclusively on streamlining the arbitration process to ensure it moves forward without unnecessary delays. They are often more adept at managing logistical issues, handling discovery disputes (including those related to electronically stored information), and dealing with procedural motions. This division of labor allows each arbitrator to specialize in their respective roles, enhancing the overall effectiveness, and efficiency of the arbitration process.

Another critical benefit of utilizing a Process Arbitrator is that they help the substantive arbitrator maintain neutrality throughout the arbitration. Because the Process Arbitrator handles preliminary disputes, such as discovery disagreements or procedural objections, the substantive arbitrator remains insulated from these contentious interactions. This separation reduces the risk of the substantive arbitrator being influenced or biased by early squabbles between the parties. The substantive arbitrator can then approach the final hearing with a fresh perspective, untainted by any procedural frustrations or negative impressions that might arise during the pre-hearing phase. By removing the burden of procedural management, the Process Arbitrator helps preserve the impartiality and objectivity of the substantive arbitrator, ensuring a fair and unbiased resolution of the core issues in dispute.


Responsibilities of a Process Arbitrator

A Process Arbitrator’s role is like that of a judicial magistrate in the court system. In many jurisdictions, magistrates assist judges by managing pre-trial motions, handling discovery disputes, and overseeing other procedural issues, which allows judges to focus on substantive legal questions. Similarly, the Process Arbitrator handles a variety of procedural matters in arbitration, including:

1. Pre-hearing conferences and scheduling: The Process Arbitrator is responsible for setting up preliminary conferences with the parties to establish deadlines for discovery, document production, and the submission of evidence. This ensures that all procedural matters are discussed upfront, allowing the arbitration to progress smoothly.

2. Discovery disputes: Complex arbitrations often involve significant discovery, including the exchange of documents, depositions, and expert reports. The Process Arbitrator resolves disputes about the scope of discovery, helping to avoid lengthy delays that can arise when parties disagree on what information should be disclosed and when.

3. Electronically Stored Information: Managing electronically stored information (ESI) requests during discovery can become a time-consuming and contentious issue. The volume of ESI in modern disputes is vast, often including emails, databases, digital communications, and other electronically maintained documents. A Process Arbitrator can play a critical role in overseeing ESI requests, ensuring that discovery is efficient, relevant, and not overly burdensome. By narrowing the scope of ESI requests, resolving disputes over the format and methods of production, and setting clear deadlines, the Process Arbitrator prevents discovery from stalling the arbitration. Additionally, the Process Arbitrator can manage technical issues, such as metadata requests or e-discovery tools, allowing for a streamlined process that prevents one party from using ESI as a tactic for delay or overwhelming the other side with unnecessary information. This focused management not only accelerates the discovery process but also helps reduce costs related to extensive data processing and review.

4. Motions: A Process Arbitrator handles all non-dispositive motions, such as motions to compel discovery or procedural objections. By taking responsibility for these procedural motions, the Process Arbitrator prevents these issues from slowing down the main arbitrator’s decision-making process. This segmentation of arbitral roles also allows the substantive arbitrator to take on the case “fresh: without any previous history or bias from disputing parties.

5. Evidentiary management: In cases where there is a large volume of evidence, the Process Arbitrator can assist in determining what evidence is necessary, whether evidence can be shared electronically, and how it will be presented at hearings.
By separating procedural and substantive roles, a Process Arbitrator helps to keep the arbitration on track, minimizes delays, and ensures that procedural disputes do not become a distraction from the core issues in the case.

Benefits of Using a Process Arbitrator

The inclusion of a Process Arbitrator in complex arbitration proceedings offers several benefits, particularly in terms of efficiency and collaboration. Key advantages include:

1. Efficiency: The primary role of a Process Arbitrator is to streamline the arbitration process, ensuring that all procedural matters are handled efficiently and in a timely manner. By focusing solely on procedural issues, the Process Arbitrator helps to avoid delays caused by prolonged discovery disputes or procedural motions.

2. Cost-effectiveness: By managing procedural matters more effectively, a Process Arbitrator can help reduce the overall cost of arbitration. Unresolved procedural disputes can lead to lengthy delays, which drive up costs. The Process Arbitrator ensures that these disputes are resolved quickly and without the need for additional hearings or extensions.

3. Neutrality and impartiality: Since the Process Arbitrator deals only with procedural issues, their role is neutral and does not affect the substantive elements of the arbitration. This division of responsibilities ensures that the substantive arbitrator’s neutrality is preserved while still allowing for efficient procedural management.

4. Focus on collaboration: A Process Arbitrator can foster collaboration between the parties by encouraging open communication and transparency in the arbitration process. By facilitating pre-hearing conferences, the Process Arbitrator ensures that both sides are aware of deadlines, procedural requirements, and evidentiary expectations, which can reduce the likelihood of disputes later.

5. Specialized expertise: Process Arbitrators often bring specialized knowledge of procedural rules and best practices in arbitration. Their expertise allows them to resolve complex procedural issues quickly and effectively, without requiring the main arbitrator to spend time learning the intricacies of procedural law.

Arbitration Associations Using Process Arbitrators

Several prominent arbitration institutions have begun embracing the role of the Process Arbitrator to enhance procedural efficiency in complex disputes, including the American Arbitration Association (AAA), JAMS (Judicial Arbitration and Mediation Services), and the College of Commercial Arbitrators (CCA). These organizations have all recognized the benefits of having a separate arbitrator to manage procedural matters, particularly in large-scale or multi-party disputes. The AAA rules have integrated procedural management techniques, offering parties the flexibility to appoint a Process Arbitrator to handle preliminary matters such as electronically stored information (ESI) requests and discovery disputes. JAMS often recommends the use of a specialized arbitrator to handle discovery and pre-hearing issues in complex commercial cases, and the CCA, known for its expertise in commercial arbitration, similarly encourages the use of procedural arbitrators to streamline case management and reduce costs, especially in disputes with extensive procedural complexity. These institutions recognize that separating procedural from substantive duties not only improves efficiency but also maintains the neutrality and fairness of the arbitration process.

The integration of a Process Arbitrator in complex arbitration proceedings substantially enhances procedural efficiency, fosters collaboration, and reduces overall costs. By exclusively addressing procedural disputes, the Process Arbitrator relieves the substantive arbitrator from delving into routine procedural nuances, thereby maintaining their impartiality and expediting the arbitration process. This role is instrumental in managing evidentiary logistics, and resolving non-dispositive motions, ensuring that procedural disputes do not obstruct the substantive adjudication of the case. The Process Arbitrator’s specialized expertise and neutrality can greatly contribute to a more streamlined and effective arbitration process.

—————

Lisa W. Timmons is the chair of the ADR Section of the State Bar of Michigan and serves as an arbitrator, mediator, and fact-finder of labor, employment, commercial, and consumer cases with AAA, FMCS,USPS, and MERC. Timmons is a member of Professional Resolution Experts of Michigan (PREMi) and was selected as a 2024-26 Associate with the College of Commercial Arbitrators (CCA). Timmons earned her BA from Michigan State University, her MA in Dispute Resolution from Wayne State University, and her JD from the University of Detroit Mercy School of Law.

I saw a TV interview on the Hamas-Israeli war that was so unusual I am turning it into a quiz:  See if you can identify the respondent not by name, religion, politics, or other demographics but by occupation.

I saw a TV interview on the Hamas-Israeli war that was so unusual I am turning it into a quiz:  See if you can identify the respondent not by name, religion, politics, or other demographics but by occupation.

I summarized and paraphrased the answers to the questions.  Also, it happened some time ago but given the continued media onslaught on Israel, I thought it was worth addressing. It has been on my “to-write” list for a while.

Q.  Doesn’t Israel’s massive response ensure more radicalization of Palestinians?

A.  If you follow that logic, Israel should just wait for the next attack. Hamas already has said, it would continue its assaults until the world is rid of Jews. It is unsustainable for Israel to live next to a neighbor which seeks its destruction. The head of Hamas has stated, “We will do this again and again and again…”   

From the “river to the sea” means the destruction of Israel. And I believe that many carrying placards with that slogan can’t name the river or the sea nor find them on a map.

The question also supposes that there is a peaceful faction in Gaza that supports a two-state solution.  Does the celebration of the grotesque massacre indicate that Gaza is replete with “peacenik” types?

Q.  But not all the people protesting against Israel support the destruction of Israel.

A.  Then why are they participating in the protests?  (Then he asks the interviewer): If you joined a protest that calls for the killing of black people, wouldn’t you drop out and then not return for a second one?

Q.  But there are 2 million people in Gaza.

A.  Yes, but did you hear any of them yell, “stop”?

Q.  Aren’t you endorsing a form of collective punishment?

A.  There is some responsibility on the part of Gazans for what is happening.  When Germans elected Hitler, they were partly responsibility for what happened. Similarly, Gazans bear some responsibility for electing Hamas as their governing body in 2006.

Q.  Half of the population in Gaza are children.

A.  It is Hamas which has embedded itself among civilians, building tunnels and bunkers under hospitals and schools. Who is responsible for that, the Israelis or Hamas?

As to the massacre October 7, which was the worst violence suffered by Jews since the Holocaust, let me make the following point:
There is a difference between Hamas and the Nazis. Even the Nazis were ashamed at what they had done and tried to cover up their actions. Hamas and its supporters celebrated the massacre with unbridled glee.

They were deeply proud. One terrorist who beheaded an Israeli with a shovel, called his parents, bragging he had killed several Israelis and asked his father to put his mother on the phone.

Q.  Prime Minister Netanyahu has suggested that Israel may well again occupy Gaza. Do you think that is fair?

A. Let me point out that Jordan could take in the Palestinians but they want no part of them.  Similarly, the Egyptians could help by accepting refugees.
They don’t want them either. Egypt could end this tomorrow by taking control of Gaza, but it has turned its back on the problem.  

Everyone wants the Israelis to solve the problem. Gaza could have become a thriving place after Israel left it voluntarily in 2005.  But Hamas did not want that. Hamas has held Gazans hostage for 18 years. The fault for the suffering of the Palestinian people lies with Hamas, which does not want a settlement of this war.

That is a summary of the interview which runs about as counter to media conventional wisdom as you can get. In terms of news, the interview took place some time ago, but the individual has continued his support in debates with Hamas defenders and others in the anti-Israel contingent.

So, who is the respondent?  It is not an Israeli.  It is not a Republican or Democrat in the U.S. who supports the Jewish state.  It is not a politician. It is not an Israeli PR official.

It is a reporter -- yes, a reporter -- standing at the Gaza-Israel border wearing a bullet proof vest with the word “press” imprinted on it.  
So, who is he?  

The writer is Douglas K. Murray, a well-known British author and political commentator and associate editor of the conservative-leaning British political and cultural magazine, The Spectator.

He was interviewed by Piers Morgan, an English broadcaster, journalist, writer and television personality.

Murray is the author of several books and has written widely for many publications in the U.K. and the U.S.  At 19, he published his first book while attending Oxford University.

So, he is obviously smart.  But a couple of other attributes stand out.  Unlike many of his colleagues, he knows the history of the Middle East, having covered it since 2006.

Most commendable, he is not afraid to separate from the pack, the herd. He is not part of the shameful echo chamber. That alone is refreshing, particularly given that he is extremely articulate. My paraphrasing does not do justice to his eloquence.

While I seldom read comments on articles on the internet, I did review reactions to his views. I was amazed at the accolades Murray received, some recommending he run for prime minister, and many stating it was the best interview they heard on the crisis.

Reporters covering the war should be required to watch the interview and listen to discussions Murray has participated in and so should Israel’s critics.

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Berl Falbaum is a long-time political journalist and author of several books.