December 2003

Bay Area Luxury Homes v. Lee, et al., 2003 WL 22664648 (Cal. App. 1 Dist., Nov. 12, 2003).

William and Leslie Lee entered into a contract to buy land and construct a home on that land with Bay Area Luxury Homes. The parties agreed to mediate any dispute before going to court. If the party commencing a court action refused to take part in mediation, attorney fees awarded in court could be set aside at the discretion of the judge. A dispute arose, and the parties mediated three times. Mrs. Lee did not appear at the first two mediations (although she was available by telephone, and Mr. Lee contacted her several times throughout the mediations). The parties did not settle, and Bay Area sued. The trial court ruled in favor of the Lees, and awarded them attorney fees. Bay Area appealed the award of attorney fees, arguing that even though they commenced the action, Mrs. Lee's failure to participate in person at the mediations barred the award because of reciprocity. The California Court of Appeals affirmed the award of attorney fees, stating that the contract had express limitations on attorney fee awards. Mediation was a condition precedent to an award, but only for the party commencing court action. Even without the condition precedent, the appeal would fail because the contract gave specific discretion to the judge, and Mrs. Lee's telephone contact evidenced her participation in the mediations.

Full opinion available online at: http://www.courtinfo.ca.gov/opinions/nonpub/A098667.PDF

November 2003

The Executive Office of the President, Office of Management and Budget, OFPP will present the second annual Federal Acquisition ADR Awards on December 3, 2003 at a ceremony in the Eisenhower Executive Office Building.

The awards program recognizes innovative conflict resolution practices such as mediation and arbitration, that provide an effective and expedited process for resolving contract disputes. Experience has shown that these practices allow agencies and contractors to resolve conflicts more quickly and less expensively, and to help them maintain long-term, solution-oriented relationships.

The awards program was established by OFPP in consultation with the Interagency ADR Working Group chaired by the Attorney General. The ceremony is being co-sponsored by the Federal Acquisition Council. The keynote speakers will be David G. Leitch, Deputy Assistant to the President and Deputy Counsel, and Robert D. McCallum, Jr., Associate Attorney General.

Judges for the awards were: Department of Justice Senior Counsel Jeffrey M. Senger; CPR Institute for ADR President Thomas. J. Stipanowich; and United States Court of Claims Judge Mary Ellen Williams. The awards will be presented by Robert A. Burton, Associate Administrator for Federal Procurement Policy.

November 2003

Jackson v. Harris, 2003 WL 22520030 (Ky. App., Nov. 07, 2003). Wilford Harris struck Maria Jackson's car in a two-car accident. Jackson sued Harris, but prior to the completion of discovery, Harris died. Harris' attorney (Myers) did not disclose the fact that Harris had died. Myers and Jackson took part in mediation, but were unsuccessful on resolving the case. The case was set for trial. Shortly thereafter, Myers filed a motion to dismiss because Jackson failed to name the estate as a defendant before the statute of limitations ran out. The trial court granted the motion and Jackson appealed. The Kentucky Court of Appeals reversed, holding that Myers had an ethical duty to inform Jackson of Harris' death at the earliest convenient moment (i.e., the mediation), and that failure to do so would create the impression to Jackson that Harris was still alive. This ethical breach precluded Myers from making a motion to dismiss, and the Court gave leave to Jackson to revive her claim and name Harris' estate as the defendant. (CF)

Source: Recent Developments in Dispute Resolution
Willamette University, College of Law November 9 - 16, 2003

November 2003

The Center has moved to www.odr.info! This website is the new home of the UMASS Center for Information Technology and Dispute Resolution. It has been designed to be a portal about online dispute resolution (ODR) as well as a source of information about the activities of CITDR. Part of this is a new version of ODR News, one that allows for comments and the posting of entries in 'blog-like' fashion. Please join in and post something if you wish!

In addition to our move, the ADR Online Monthly is now the ODR Monthly - an online publication dedicated to providing exposure for ODR practices, professionals, and research. In the November ODR Monthly we are pleased to present the Center's new portal as well as a new article, "Towards an online negotiation environment: legal principles, technical requirements and the need for close cooperation" by Stephanie Bol and Arno Lodder.

November 2003

You are invited to subscribe to the Common Ground News Service-Partnersin Humanity (CGNews-PiH). This service, brought to you by Search for Common Ground, seeks to build bridges of understanding between the Westand the Arab/Muslim World.

In July 2003, Search for Common Ground, in partnership with His Royal Hi ghness Prince El Hassan bin Talal, invited sixty leaders of NGOs, government agencies, international organizations and media to meet as "Partners in Humanity" in Amman, Jordan. Participants were asked to develop an action plan to improve understanding and cooperation between the U.S. and the Muslim World. This meeting, funded by the Carnegie Endowment for International Peace, resulted in several initiatives, including support for an effort to disseminate news that promotes different perspectives and dialogue. The first edition of CGNews-PiH, which will be distributed on October 24, 2003, focuses on key challenges and opportunities that were discussed at the recent Partners in Humanity meetings.

Every two weeks, CGNews-PiH will distribute 2-5 news articles, op-eds, features, and analyses from the Arab/Muslim world and Western press that aid in developing and analyzing the current and future relationship of the West and Arab/Muslim world. Articles chosen will be accurate, balanced, and seek to improve understanding and communication across borders and regions, and reflect the need for constructive dialogue around issues of global importance. Selections will be authored by local and international experts and leaders who will analyze and discuss a broad range of relevant issues. We invite you to submit any articles you feel are compatible with the goals of this news service.

To receive CGNewsPiH, please send an email to with "subscribe" in the subject line. Also, please forward this message to colleagues and friends who may also be interested in this service.

October 2003

Washington, DC, October 8, 2003 – In a move designed to increase the number of Alternative Dispute Resolution (ADR) professionals of color and to enhance their access to ADR clients, The JAMS Foundation in cooperation with the American Bar Association’s Section of Dispute Resolution have created “ACCESS ADR.” ACCESS ADR – a project conceived by African-American ADR experts Homer C. La Rue and Marvin E. Johnson of JAMS and sponsored by the JAMS Foundation -- will offer training, mentoring and business development support to experienced mediators from various racial and ethnic groups underrepresented as full-time neutrals in the field. Mr. La Rue and Mr. Johnson are based in JAMS’ Washington, D.C. office.

Candidates for the first group of Fellows of ACCESS ADR in 2004 will be asked to demonstrate their integrity, competence and commitment to ADR as full-time ADR professionals in order to enter the program. Some Fellows of the program will be asked to become mentors for future Fellows of the project.

The announcement of ACCESS ADR was made today by Jay Welsh, JAMS Vice President and General Counsel and Richard Chernick, Vice President and Managing Director of JAMS Arbitration Practice, who is Chair of the ABA’s Section of Dispute Resolution.

“The need for more full-time mediators from a variety of racial and ethnic groups is one of the great challenges facing the ADR industry today, “Mr. Johnson said. “This is the reason ACCESS ADR was created.”

“As the largest private provider of ADR services in the U.S., we at JAMS, The Resolution Experts must play an active role in attracting more people of color and diverse ethnic backgrounds to the profession,” said Mr. Welsh. “ACCESS ADR is precisely the kind of innovative program we had in mind when we created The JAMS Foundation in 2001.”

“The assumption underlying ACCESS ADR is that there are mediators from a variety of racial and ethic groups who are qualified to handle high-stakes/complex mediations, and that there are users of ADR services who want to use such mediators,” Mr. La Rue said.

“The problem has been that the users of the services do not know these mediators. This project, ACCESS ADR, is designed to link the two.”

ACCESS ADR will be overseen by an independent Advisory Board that will include members of plaintiff bar organizations, defense bar organizations, insurance company representatives, corporations and other high-volume users of neutral services. Members of the Advisory Board will be asked to assist Program Fellows by helping them further their careers as full-time ADR neutrals.

October 2003

Encino -- The International Academy of Mediators (IAM) will award Pepperdine University School of Law its first annual "Excellence in Education" at the University's prestigious Masters Forum on Friday, October 17th. The IAM Award is in recognition of the University's contributions to the dispute resolution field.

In 1986, Pepperdine University School of Law began its innovative graduate work in dispute resolution that now includes more programs than any other US law school. Providing the most comprehensive and utilitarian reconciliation strategies in the nation, the Straus Institute offers its students two tracks of educational pursuit: academic and training programs."

Pepperdine's dedication to the dispute resolution arena is unmatched in any academic setting in this country," says Jeffrey Krivis, IAM president. "The University has done an incredible job in teaching dispute resolution techniques."

Law and graduate students as well as career professionals can participate in the largest Professional Certificate Program in Dispute Resolution and the first Master of Dispute Resolution degree program offered by a law school. The Straus Institute has consistently topped the lists among national law school dispute resolution programs over the past five years. In 2003, Pepperdine and Harvard were ranked as one and three, respectively, by U.S. News.

The IAM, which will present the award to Pepperdine, is a nonprofit, professional and honorary organization of mediators, whose purpose is to define standards and qualifications for the professional mediator of commercial disputes and to promote the mediation process as the preferred means of resolving disputes."

The IAM began the 'Excellence in Education' Award to honor academic institutions that have made significant contributions in furthering dispute resolution techniques," says Krivis.

October 2003

Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2003 WL 22232114 (Wis. Ct. App., Sept. 30, 2003). The City of Milwaukee submitted a bill of costs to the circuit court clerk after they prevailed on the motion for summary judgment. The Milwaukee Metropolitan Sewerage District took exception to paying for a mediation service fee, which was listed in the bill as a taxable cost. The judgment was entered without the mediation service fee. The City later filed an amended judgment including the mediation service fee and photocopying costs of $1862.21. The trial court denied the inclusion of the mediation service fee but awarded the City payment of the photocopying costs. The District appealed, and the Wisconsin Court of Appeals held that pursuant to Wis. Stat. ' 814.10(4), the proper procedure is for the trial court to refrain from entertaining motions for costs until the circuit court clerk has addressed the matter. Thus, the City followed the correct statutory procedure. However, the Court found that the City had attempted to change the photocopies into certified copies, which are taxable under the statute. Therefore, the trial court mistakenly ruled that the City's photocopying costs were properly taxed as costs to the District. (CF) Full opinion available online at: http://www.courts.state.wi.us/ca/opinions/02/pdf/02-2961.pdf

Source: Recent Developments in Dispute Resolution
Willamette University, College of Law

October 2003

About 75 percent of all labor-management negotiations involving assistance from the Federal Mediation and Conciliation Service were settled with contracts reached in 2003, averting potentially disruptive work stoppages for thousands of companies and tens of thousands of workers, many in industries key to the economy and national security.

According to agency fiscal year-end figures, the total number of work stoppages declined from 327 in fiscal year 2002 to 289 in fiscal 2003, which ended Sept. 30. Federal mediators typically are asked to resolve the most difficult labor-management disputes.

Federal mediators were asked for their assistance in 6,640 labor-management talks in fiscal 2003 out of 19,306 collective bargaining negotiations nationwide. Federal mediators helped the parties reach agreements in 4,988 of those cases-a 75 percent settlement rate, consistent with the average rate of 75 percent achieved in recent years.

Although approximately one in four cases was not concluded with an agreement, in many instances, FMCS mediators provided assistance to the negotiating parties in reducing the number of open or unresolved issues. Only 1.5 percent of the total cases assigned to federal mediators resulted in work stoppages, according to agency figures.

The agency was instrumental in helping parties reach agreement in a number of high-profile labor negotiations during the fiscal year. Among these was the West Coast ports situation, where the economic loss resulting from a work stoppage by dock workers was estimated at $1 billion a day. Another was the Verizon negotiations, which was settled successfully last month, averting a work stoppage that could have cost the northeast economy a minimum of $16 million a day in lost wages alone.

Agency Director Peter Hurtgen thanked the FMCS staff for their hard work and dedication, saying, "This has been another productive and successful year for FMCS. FMCS has a long record of continuing accomplishment in assisting parties in conflict, and the record for 2003 shows that we are keeping up our excellent batting average."

September 2003

PRESS RELEASE:

Cheri Sundae Productions is looking for two married couples in the Los Angeles area who are contemplating divorce, but are willing to consider a no-cost alternative to traditional, adversarial divorce proceedings. Each couple must have been married at least four years and be willing to appear on an unscripted television program to be shown on the Discovery Health Channel in the first half of 2004.

The show, tentatively titled DIVORCE MEDIATION, will, in essence, document important moments in the lives of these real life couples over a three-month period, as they meet with a mediator to devise their own, mutually-acceptable Settlement Agreement.

Viewers will come to know the participants intimately, discovering the love that brought them together and the issues that now force them apart. Our cameras will record each step along the way as they and their families, friends and co-workers take the journey from the demise of a marriage to an unknown tomorrow. By the end of the show, DIVORCE MEDIATION will reveal the many layers underlying the end of a marriage. The audience will come to understand how our two couples have lived their lives, why they made the decisions they did, and the mix of fear and hope that fills their futures.

"This show is something new for me," says Cheri Brownlee, president of Cheri Sundae Productions, who - in addition to helping launch ENTERTAINMENT TONIGHT - has overseen such shows as NBCs FUNNIEST OUT-TAKES, WILD WEDDINGS for TLC, as well as Paramount's HARD COPY and REAL TV. "In a world seemingly consumed with conflict and hate, it is my hope that the viewers will learn something positive from watching couples who - though they've fallen completely out of love - still find a peaceful resolution to their marriage."

Producer Barry Simon, a mediator himself who has worked with divorcing couples, adds, "We are looking for two couples who are willing to open themselves up to the kind of in-depth exploration this show will achieve. We need four fearless and articulate adults who are willing to talk about what they are experiencing and feeling. For in the end, while the subject is divorce, the show will also be about marriage."

DIVORCE MEDIATION will begin shooting in mid-November, 2003. Interested couples can schedule an interview by either calling (310) 385-8030 or via email at divorcemediation@resolvenow.com.

September 2003

H.A. Smith Lumber & Hardware Co. v. Decina, 2003 WL 22136280 (Mich. Ct. App. Sept. 16, 2003). The Gobises entered into a contract with Decina to construct a home. During construction, Decina subcontracted work to Smith and Williams. On completion of the house, the Gobises withheld final payment and additional money based on Decina’s amendments to the contract. Smith filed a complaint against Decina and the Gobises, and the Gobises and Decina filed cross complaints against each other. A mediation panel, finding no cause of action for the claim against Decina, concluded that the Gobises should pay $8,000 to Smith and $4,500 to Williams. The Gobises rejected the panel’s evaluation whereas Smith, Williams, and Decina accepted. The trial court found Decina liable to Smith and Williams, but also found that the Gobises had no cause of action against Decina. Decina moved for mediation sanctions against the Gobises pursuant to MCR 2.403(O)(1), requiring a party that rejects an evaluation to pay the other party’s costs if the action proceeds to verdict and is less favorable to the rejecting party than the mediation evaluation. In determining whether the Gobises should pay mediation sanctions to Decina, the court must only consider the claim between the Gobises and Decina disregarding all other claims and. The State of Michigan Court of Appeals found the trial court in error in denying Decina mediation sanctions because Decina received a “more favorable” verdict in court than in mediation. (CF)

Source: Recent Developments in Dispute Resolution
Willamette University, College of Law
Center for Dispute Resolution

September 2003

State v. Capitol Feed and Mill, Co., Inc. 2003 WL 22096151 (Tex. App.Sept. 11, 2003). The State of Texas filed a petition for condemnation to expand the right-of-way along a U.S. highway. The expansion would eliminate about twenty parking spaces surrounding Capitol Feed and Milling Companys store and could also affect the traffic flow within the parking lot. The State sought commencement of a jury trial after a special commissioners $2.25 million dollar award to Capitol for the value of the land taken. Capitol set the case for trial despite the states objections to the selected date. The State unsuccessfully moved for a continuance. On appeal, the State reasoned that the continuance was necessary due to their expert witnesses lack of sufficient preparation time, counsels scheduling conflicts, and the fact that the dispute had not been mediated. All of the States arguments failed. A denial of continuance is reversible only if a clear abuse of discretion is shown. The Court of Appeals of Texas held that although the trial court could have granted a continuance on grounds that the dispute was never mediated, it was not a clear abuse of discretion to not do so. (CF) Full Opinion available at: http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID12164

Source:Recent Developments in Dispute Resolution
Willamette University, College of Law
Center for Dispute Resolution

August 2003

Functions to be transferred to Oregon School of Law and Portland State University

Senate Bill 904, abolishing the Oregon Dispute Resolution Commission (ODRC), passed the Oregon House on August 27, 2003. It is anticipated that the bill will be signed by the Governor. This bill transfers the Community Dispute Resolution related functions of the ODRC to the University of Oregon and the State Agency and Public Policy Dispute Resolution functions of the ODRC to Portland State University.

For future Oregon ADR assistance:

1) The University of Oregon School of Law will support Oregon's 23 community dispute resolution centers that assist citizens in resolving a variety of neighborhood, family, business and small claims type disputes. Contact: Jane Gordon, University of Oregon School of Law, 1515 Agate St, Eugene, OR, 97403. Phone: 541-346-1557, e-mail jgordon@law.uoregon.edu.

2) The Portland State University Hatfield School of Government will assist state agencies develop dispute resolution programs and assists in complex public-policy controversies. Contact: Greg Wolf, National Policy Consensus Center, Portland State University, 720 Urban Center, P.O. Box 751, 506 SW Mill St. Portland, OR 97201 (503)-725-9077, gwolf@pdx.edu.

3) The Oregon Department of Justice through its ADR Coordinator, maintains a state mediator roster and assists state agencies in establishing dispute resolution programs. Contact: Mike Niemeyer, Oregon Department of Justice, 1162 Court Street NE, Salem, OR 97301-4096, 503-378-6003, e-mail mike.niemeyer@state.or.us.

4) The Oregon Mediation Association offers valuable practice and educational information and a mediator directory at www.mediate.com/oma. Contact: Kristen Erbes at omediate@teleport.com.

August 2003

Mediation: Agreement to mediate employees' claims through issue resolution process involving outside mediator constitutes agreement to "arbitrate" covered by the Federal Arbitration Act. Mark Fisher, et al. v. GE Medical Systems, (2003 WL 21939479 (M.D.Tenn.))

Mark Fisher filed a collective action complaint against his employer, GE Medical Services (GE), under the Fair Labor Standards Act (FLSA). GE filed a motion to compel mediation of the claim pursuant to the company's "Issue Resolution Process" (the "Program"), which consisted of four levels. Levels I and II occur within the company. If an employee was not satisfied with the results there, his recourse was to submit the claim to Level III Mediation, which provided for a confidential and private mediation administered by the American Aribtration Association pursuant to its rules for resolution of employment issues. If the mediation was unsuccessful and did not result in a settlement agreement, the employee remained free to commence Level IV court proceedings. Fisher argued that requiring him to mediate his FLSA dispute under the Program was inappropriate because it would force employees to forego nonwaivable statutory rights. However, the District Court disagreed with Fisher's argument and held that the Program merely delayed employee access to the courts and did not diminish their remedies, and thus, it was entirely appropriate. In granting GE's Motion to Compel Mediation and staying court proceedings, the District Court found that "arbitration" is in the FAA is a broad term that encompasses many forms of dispute resolution, including mediation, and that an agreement to mediate claims was agreement to arbtirate covered by the FAA.

Source: Recent Developments in Dispute Resolution
Willamette University, College of Law
Center for Dispute Resolution

August 2003

The American Bar Association presented the Lawyers as Problem Solvers Award to the Department of the Air Force at an Aug. 8 conference in San Francisco, according to an article in Air Force Print News.

Joseph McDade, deputy general council for dispute resolution for the Air Force, said the American Bar Association dispute-resolution department is holding up the Air Force legal team as an example for public- and private-sector legal departments to emulate.

Alternative dispute resolution is a method to resolve conflicts that involves the parties working with a trained arbitrator rather than going to court. Conclusion often comes more quickly and at less cost when using this approach.

For example, McDade said, the Air Force was in conflict with an aircraft-maintenance contractor. The Air Force chose to employ ADR instead of going to court when it appeared that litigation could take up to five years.

The Air Force put an ADR process in place and resolved the conflict in months rather than in years and prevented almost $94 million in liability to the contractor, according to the article.

ADR is used in both the public and private sectors to resolve disputes. Within the federal government, no other agencies use ADR with as much breadth as the Air Force, McDade said.

The Air Force's legal team uses ADR to handle contract disputes, labor-management issues and EEO issues. The service has more trained ADR mediators - approximately 460 - than any other agency, and has the only senior-executive positions dedicated to ADR within the Department of Defense, Air Force Print News reports.

Source: FPMI

July 2003

Bolle, Inc. v. American Greetings Corp. 2003 WL 21508501 (Tex.App Dallas 7/2/2003)

In 1997, Bolle, Inc. filed suit in Texas against American Greetings Corporation for, among other things, fraud, misrepresentation, and breach of warranty. The trial court ordered the parties to mediation where they accepted a proposed settlement (the "Texas agreement"). The Texas agreement included expansive mutual release language which purported to cover all claims of any kind known or unknown including but not limited to claims arising out of the lawsuit. Meanwhile, in California, a subsidiary of American Greetings had filed three suits for patent infringement, between 1991 and 1997, against a subsidiary of Bolle. Bolle filed a motion to dismiss the California lawsuits two months after finalizing the Texas agreement on the ground that the mutual release language of the Texas agreement was intended by the parties to apply to the previously filed California lawsuits. The trial court denied the motion and held that the California lawsuits were not subject to the Texas agreement because the Texas agreement was a product of mutual mistake. Bolle appealed, but the Court of Appeals upheld the trial court's finding that, even though the parties to the Texas Agreement had knowledge of the California lawsuits at the time of settlement, mutual mistake was present. The fact that the California lawsuits were never mentioned by any of the parties in mediation, in caucus, or during finalization of the Texas agreement was mentioned as especially supportive of a finding of mutual mistake. (KA)

Full opinion available at: http://courtstuff.com/cgi-bin/as_web.exe?c05_03.ask+D+10528852

Source: Recent Developments in Dispute Resolution
Willamette University, College of Law

July 2003

Zhu v. Countrywide Realty Co. Inc. 2003 WL 21399023 (10th Cir. (Kan.) June 28, 2003)."

Sue Zhu and Countrywide Realty Company, Inc. had a dispute from a real estate transaction in Federal District Court. The parties attended a mediation session with a magistrate judge and reached a mediated settlement. Subsequently, Zhu changed her mind about the agreement and requested that the District Court reopen the litigation. The District Court denied her motion. Zhu raised two issues on appeal to the Court of Appeals for the Tenth Circuit. First, she claimed the magistrate judge breached confidentiality by revealing settlement negotiations in addressing her motion to reopen. The Court of Appeals held there was a disclosure, but the disclosure was necessary in order to respond to Zhu's motion to reopen. Therefore, the disclosure did not constitute a violation of confidentiality rules. The second issue raised on appeal was that the mediated settlement was unconscionable because the amount she received was inadequate to cover her expenses and did not include punitive damages. The Court of Appeals found the settlement was not unconscionable since Zhu was represented by counsel at the mediation session, and the settlement eliminated uncertainty of the result."

Full Opinion available at:

http://pacer.ca10.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-3087.wpd

June 2003

Green Tree Financial Corp. v. Bazzle Decided: 06/23/03 No. 02-634 Full text: http://www.supremecourtus.gov/opinions/02pdf/02-634.pdf

ARBITRATION (Arbitrator Must Interpret Terms of Arbitration Clause, not Courts)

The United States Supreme Court held 5-4 (opinion by Breyer; concurrence by Stevens; dissents by Rehnquist and Thomas) that decisions on what kind of proceedings parties have agreed to in otherwise valid arbitration clauses are matters of contract interpretation and thus, within the province of arbitrators, not the courts.

Homeowners, Lynn and Burt Bazzle (Bazzle) brought an action against their lender (Green Tree) in Dorchester County, South Carolina alleging that Green Tree violated provisions of the Consumer Protection Code. Homeowner, Daniel Lackey (Lackey) brought a similar claim against Green Tree in Barnwell County, South Carolina. In 1997, Bazzle asked the Circuit Court to certify its claim as a class action, while Green Tree sought to compel arbitration.

The Circuit Court certified a class action and compelled arbitration. Similarly, Lackey sought class certification for its arbitration proceeding against Green Tree; however, the Circuit Court did not certify this class action. Rather, the arbitrator (who had already tried the Bazzle case) certified the class action. Following rulings in favor of Bazzle and Lackey, Green Tree appealed both cases to the South Carolina Court of Appeals (Court of Appeals), arguing that the contractual provisions in its agreements with Bazzle and Lackey proscribed class arbitration. The South Carolina Supreme Court withdrew both cases from the Court of Appeals, assumed jurisdiction, and consolidated the proceedings, holding that class arbitration was permissible because the contracts were silent on the issue.

The United States Supreme Court (the Court) held that when contracting parties submit to a valid arbitration clause, the question of whether the agreement forbids class arbitration is for an arbitrator to decide. The Court concluded that, although the arbitrator certified class arbitration in the Lackey case, there was a strong likelihood that his decision reflected the Circuit Court¡¦s class certification ruling in the Bazzle case, as he was party to both. Therefore, the parties must receive an arbitrator¡¦s decision as to the interpretation of their contracts. [Summarized by R. Grant Cook.]

Source: Willamette Law Online

June 2003

SB 904 was introduced to the Joint Ways and Means Subcommittee Friday, June 20, 2003. SB 904 dissolves the Oregon Dispute Resolution Commission (ODRC) and transfers some functions to the Department of Justice (DOJ, the Attorney General's Office). Proposed functions include retaining some grant funding for community dispute resolution programs (CDRPs), although the amount of money has not been specified.

SB 904 also proposes transferring part of the surcharge revenue to the Oregon Judicial Department (OJD, the courts) for court-connected mediation and arbitration (again, the amount of money has not been specified). In addition, rulemaking authority for CDRPs and confidentiality statutes would be retained by DOJ, but other rulemaking authority (for court connected and domestic relations) would be transferred to OJD.

The text of SB 904 can be found by going to the Legislature's website http://www.leg.state.or.us/ and doing a search for current bills.

This link should take you to the text http://www.leg.state.or.us/03reg/measures/sb0900.dir/sb0904.intro.html

It is unclear when SB 904 will be heard, but some have suggested it might be this Friday, June 27, 2003. It is also unclear whether public testimony will be allowed. Regardless, OMA is working on a Legislative response.

June 2003

The ABA Section of Dispute Resolution Lawyer as Problem Solver Award cosponsored this year by the Section of Public Contract Law will recognize Family Lawyer and Mediator Charles A. Asher and the United States Air Force with the Lawyer as Problem Solver Award. Mr. Asher will be recognized for his investment of enormous time and resources and his application of insight and creativity in developing a web-based instrument to help divorcing parents reduce the adverse consequences of conflict and divorce on their children. The United States Air Force will be recognized for its outstanding dispute resolution programs in contract, workplace, and labor-management disputes in which it established the procedural guidelines for integrating ADR as an essential part of the processes by which the Air Force resolves its disputes. The tickets are $50 and can be purchased on line at www.abanet.org/annual/2003 or call the Section Staff office at (202) 662-1680.

The presentation will occur on Friday, August 8 in Room 104-Exhibitor Level of the Presidential CLE Center Moscone Convention Center - South.

The purpose of the award is to recognize lawyers who in their professional capacities use their lawyering and problem-solving skills to forge creative solutions. The Section of Dispute Resolution is dedicated to assisting lawyers and neutrals in acquiring and applying skills that permit innovative and efficient resolution of conflict. The award is given to a member of the legal profession who has exhibited extraordinary skill in either promoting the concept of the lawyer as problem-solver or resolving individual, institutional, community, state, national, or international problems. Recipients are acknowledged for their use or promotion of collaboration, negotiation, mediation, counseling, decision-making, and problem-solving skills to help parties resolve a problem in a creative and novel way.

June 2003

On Saturday morning, June 28, the California Dispute Resolution Council (CDRC) and the Southern California Mediation Association (SCMA) are co-sponsoring "Rojas Confidentiality Examined" a forum at Pepperdine Law School's Straus Institute to discuss the Rojas v. Superior Court case currently pending before the Supreme Court of California.

Moderated by mediator Lee Jay Berman, the panel includes an impressive line-up of California's legal leaders including President of the State Bar, President of the Consumer Attorneys Assn. of Los Angeles, a Board Member of the Assn. for Southern California Defense Counsel, a sitting Judge from the L.A. Superior Court, Immediate Past Chair of the L.A. County Bar's Litigation Section, and the Presidents of CDRC and SCMA.

The reason for the impressive turnout of leaders is because the issues Rojas are paramount to the mediation process. In Rojas, a construction defect mediation, mold was discovered, tested, and remediated during the mediation. After the mediation, some of those who lived in the building developed respiratory problems traced to mold spores in their lungs. They have been unable to prosecute their case because the existence of the mold was protected by the confidentiality of the mediation process. This case involves the important balancing of the need for mediation confidentiality against people's need to access this information to prove their case in later actions.

In preparing the State Supreme Court, SCMA and CDRC filed Amicus papers with the court, taking opposing viewpoints. In attempting to vet the issue, the two are hosting this Forum along with Supporting Organizations that include ADR Services, the American Arbitration Association, Arbitration Mediation Conciliation Centers, Association for Conflict Resolution - San Diego Chapter, Association of Southern California Defense Counsel, Consumer Attorneys Association of Los Angeles, The Institute for Mediation Studies, L.A. County Bar Association's Dispute Resolution Services, DRS Associates and Real Property Sections, and Pepperdine Law School's Straus Institute of Dispute Resolution.

We invite you to join us at the Forum. We think that this program, with its panelists and supporting organizations, warrants press coverage in the business and legal media, and that it would make a wonderful article on the hottest issue facing the mediation, ADR and legal communities today. It promises to be a high-energy, interactive discussion involving audience participation as they discuss, debate and even argue the passions surrounding this case.

Additionally, we ask your assistance in bringing the message of this program to your audience and readers.

For more information, or to arrange attendance, please contact Lee Jay Berman, program coordinator, at 213-383-0438 or leejay@mediationtools.com.

June 2003

The Keybridge Foundation, in collaboration with CRInfo and funded by the Hewlett Foundation, is pleased to announce the launch of the Clearinghouse for Mediation Program Managers website. This website will enable mediation program managers to network with other programs, share knowledge and expertise, and exchange information about current mediator management practices. Our focus is on assisting program managers as they create and manage rosters of mediators.

Please visit the site at www.crinfo.com/mediation-program-managers. If you manage a roster, fill out our questionnaire of Mediation Program Roster Practices so that we can begin to collect data for the Clearinghouse. The data from many programs will in turn be helpful for you in developing or improving your own program.

Whether the program serves a court system, community mediation center, state or federal agency, or private referrals, the Clearinghouse provides links, articles, and tools to support mediation program managers. Please direct feedback to adr@keybridge.org.

May 2002

Mediation: A consent judgment does not flow from the consent of the parties where a party to be bound participated in the mediation for over two years and denied any interest in asserting an interest in the disputed property, unless there is actual consent to the consent judgment. Kean v. Adler, 2003 WL 21205885 (3rd Cir. (Virgin Islands)).

Plaintiffs, some of the devisees of real property located in St. John, United States Virgin Islands, sued their fellow devisees, including

Carolyn Ortiz ("Ortiz"), the daughter of an original devisee of property, to resolve disputed property claims. Ortiz filed a cross- claim against the United States. The United States answered in November 2000 by denying any intention to assert a claim against defendant's 3-acre parcel. After the district court ordered the parties to mediation, the United States participated in the mediation, at the request of the parties, even though the United States had said it need not participate in the mediation proceedings, and would leave the dispute to be resolved by the other parties (family members) if the only dispute to be discussed was Ortiz's 3-acre parcel. The mediation continued until March 2002 and resulted in a settlement agreement between all the parties, except the United States, and agreed to jointly move for entry of a consent judgment. Shortly thereafter, the United States filed a counter-claim against the defendant, claiming that her interest in the 3-acre parcel was subject to an indenture for eventual inclusion in the Virgin Islands National Park. Though the court held that it was not convenient to let the United States reverse its position "this late in the game," the 3rd Circuit Court (Virgin Islands) held that a consent judgment resulting from mediation must flow from the actual consent of the parties, and that the United States' earlier position did not constitute actual consent. (DP)

Source: Willamette Law Online - Dispute Resolution

April 2003

Arbitration: Federal policy favoring arbitration preempts local law that seeks to limit the availability of arbitration. Saturn Distribution Corp. v. Paramount Saturn, LTD.; 2003 WL 1561908 (5th Cir. (Texas) 2003)

Paramount became a franchisee in Houston Texas, in December 1997. The agreement between Paramount and Saturn Distribution contained a broard arbitration provision. Paramount sought to purchase three dealerships from Saturn Distribution, but Saturn did not sell the dealerships to Paramount. Paramount brought action, alleging Saturn breached its statutory duty to bargain in good faith. Saturn sought to compel Paramount to arbitrate the dispute. Paramount argued that the arbitration clause did not apply, because the Texas Motor Vehicle Board (TMVB) had exlusive jurisdiction over the dispute. The district court granted Saturn’s motion to compel arbitration, and closed the case, with out dismissing it, while labeling this as the court’s “Final Judgment.” On appeal, the Fifth Circuit Federal Court of Appeals found two issues to decide. The issues the Court found were whether the district court’s decision was appealable, and whether the dispute was arbitrable. The Court held that the case was appealable despite the fact that the case was not dismissed. The FAA permitted this case to be appealed because the district court closed the case, used language to end the matter, and because the order by the district court was not accompanied by a stay of federal court proceedings. Next, the Court held that the case may proceed through arbitration, because it contained a broad arbitration provision. The Court held the TMVB did not have exclusive jurisdiction because the federal policy favoring arbitration preempted the Texas law. (DH)

Available online at: http://caselaw.lp.findlaw.com/data2/circs/5th/0220431p.pdf

April 2003

Mills v. Vilas County Board of Adjustments (Wis.App. 3rd Dist., 2/25/03)

Walter Mills applied to the Vilas County Board of Adjustments for a building permit for an island Mills owned. The island was within the boundaries of the Lac du Flambeau Band of Lake Superior Chippewa Indians (Tribe). After the permit application was denied, the Tribe filed a motion in the local Circuit Court for an injunctive order preventing issuance of such permits in the future. At the court's suggestion, Mills and the Tribe mediated an agreement according to which the Tribe would purchase of the island for $1.5 million, "subject to the approval of Tribe membership, if needed." The Tribe's constitution required a referendum for expenditures of more than $10,000, and the referendum to buy the island failed. In spite of the failed referendum, Mills filed a motion in court to enforce the mediated agreement. The motion was denied and Mills appealed. The Wisconsin Court of Appeals held that because the Tribe alerted Mills that a referendum might be required prior to the purchase, and Mills agreed to that condition, the mediated agreement was unenforceable. In addition, the Court held that the refusal of the trial court to consider the validity of the Tribe's referendum process was a proper invocation of the doctrine of comity. Finally, the Court described the steps that Mills or the mediator might have taken to draft an agreement that stood a better chance of being enforced.

Full opinion available at: http://www.courts.state.wi.us/html/ca/02/02-2546.htm

April 2003

Richard S. v. Department of Developmental Resources 9th Circuit Court of Appeals (January 29, 2003)

A class of developmentally disabled adults sued California's Department of Developmental Services in an attempt to bring the agency's system for transferring clients from state to community facilities in conformity with the Americans with Disabilities Act. The district court enjoined further transfers pending the litigation, first on a temporary basis and then, as a result of a request from an intervenor, permanently. DDS appealed and while the appeal was pending, the parties reached a settlement. The settlement reflected a "partial win" for the plaintiffs, but did not mirror exactly the relief that they demanded in their lawsuit. The plaintiffs requested attorney's fees to be paid by defendants because plaintiffs were "prevailing parties." The district court ruled that they were indeed prevailing parties, even though the settlement did not give them everything they wanted, and despite the fact that the "win" of the temporary injunction merely preserved the status quo. Moreover, the "win" of the permanent injunction belonged to the intervenor. Nonetheless, the district court described the class action as a "catalyst" for the settlement, entitling plaintiffs to fees. However, before the fees had actually been paid, the U.S. Supreme Court decided the case of Buckhannon v. West Virginia Department of Health and Human Resources (in 2001) which held that parties would be entitled to "prevailing party" status only if (1) they won on the merits, or (2) they entered into a court-supervised consent decree. The district court concluded that Buckhannon required a reversal of the fee order.

Plaintiffs appealed.

The Ninth Circuit reversed the trial court's decision, holding that while Buckhannon may have destroyed the "catalyst" claim, existing California law granted "prevailing party" status to anyone whose relief (by verdict or settlement) causes the defendant to change practices in a way consistent with plaintiff's original request. The Court held that "prevailing party status is not dependent on the degree of success achieved." In addition, the Court reversed the trial court's ruling regarding the temporary injunction, declaring it a win and not a preservation of status quo, but affirmed the ruling regarding the permanent injunction.

April 2003

The Utah State Bar has opined that an attorney may give legal advice to a non-lawyer mediator about the potential legal consequences of particular divorce agreements, and not be deemed to have assisted a non-lawyer in the unauthorized practice of law. However, the Utah ethics rules would bar the attorney from teaching the mediator how to prepare documents such as agreements or pleadings. The mediator may prepare these documents but not with the assistance of counsel. Counsel may review the documents and recommend revisions, provided that one of the parties retained the lawyer and that the other assented to the limited role the lawyer would play. The committee stopped short of defining the mediator's activities as unauthorized practice, suggesting that the question was not within its jurisdiction.

See U.S. Law Week, Volume 71, Number 30, p. 2502. (February 11, 2003)

April 2003

PacifiCare Health Systems, Inc. v. Book
Decided: 04/07/03
No. 02-215
Full text: http://laws.findlaw.com/us/000/02-215.html

The United States Supreme Court held unanimously (opinion by Scalia) that an arbitration agreement that limits a statutory remedy is initially enforceable and it is premature for the court to consider the enforceability of the contract until the arbitrator has construed the remedial limitations.

Mr. Book and other physicians (Book) sued several managed-health-care organizations, including PacifiCare Health Systems, Inc. (PacifiCare), under the Racketeer Influenced and Corrupt Organizations Act (RICO) and Employee Retirement Income Security Act (ERISA). Book alleged that PacifiCare unlawfully failed to pay for services provided to patients covered by the organizations’ health plans. The United States District Court for the Southern District of Florida (District Court) denied PacifiCare’s move to compel arbitration through an arbitration clause in a contract signed by Book. The District Court concluded that Book might not be able to obtain meaningful relief for allegations of statutory violation in an arbitration forum because of the remedial limitations in the contract. As a result, the arbitration agreements were unenforceable with respect to the RICO claim. The Court of Appeals for the Eleventh Circuit affirmed. The United States Supreme Court reversed, holding that a court may not take it upon themselves the authority to decide how an ambiguity is to be resolved on the “mere speculation” that an arbitrator might interpret these ambiguous agreements in a matter that casts their enforceability into doubt. Reversed and remanded.

Source: Willamette Law Online

April 2003

Casper v. Preston 2003 WL 1563985 (Tex. App. 1st Dist 2003).

Timothy Casper filed for divorce from Gae Preston, and in mediation the parties reached an agreement, including a visitation schedule for the couple’s two children. Subsequently, the trial court rendered a divorce decree that also covered visitation. Casper appealed this decree by arguing the terms were materially different from the parties’ mediated settlement. Capser claimed, pursuant to Texas family law, if a mediated settlement agreement includes separate paragraph stating it is not subject to revocation and is signed by the parties and attorneys, a party is entitled to a judgment on the agreement. The Court of Appeals found Casper and Preston’s agreement satisfied these requirements, and the trial courts decree provided materially different terms regarding visitation. Therefore, the Court of Appeals modified the trial court’s decree to conform to the terms of the mediated settlement agreement. (KA)

Full opinion available at Westlaw: 2003 WL 1563985

Source: Willamette Law Online - Dispute Resolution

April 2003

Earl Anthony Bowling, Inc. v. Corrie Development Corp, Dublin Land Co. 2003 WL 1605803 (Cal. App. 1st Dist 2003).

Earl Anthony Bowling (Anthony) leased a piece of property from Dublin Land (DLC), and the lease contained a right-of-first-refusal provision. In spite of this provision, DLC sold the property to Corrie Development Corp (Corrie). Anthony opposed the sale, but settled with DLC through private mediation, without filing a complaint in court. Their agreement provided that Corrie would pay certain expenses, and contained a provision that any party may enforce the agreement under California Code of Civil Procedure §664.6 or any other procedure permitted by law. Corrie did not pay the designated expenses. DLC filed a motion to enforce the settlement pursuant of section 664.6. Corrie opposed the motion, and claimed enforcement of a settlement under section 664.6 requires “pending litigation” between the parties. At the time of settlement, there was no “pending litigation” between Anthony and DLC. The court held the statutory language of “pending litigation” is to be construed literally. There was no unresolved dispute between the parties at the time of mediation; therefore, the enforcement provision in the mediated agreement was ineffective. (KA)

Full opinion available on Westlaw: 2003 WL 1605803

Source: Willamette Law Online - Dispute Resolution

April 2003

Key Bridge Foundation Center for Mediation announces an innovative initiative focusing on the issue of whether mediators should determine a party’s capacity to mediate. The initiative, based on work begun in 2001, includes publication of a research paper, development of a training manual, and provision of a series of advanced mediator trainings funded by the U.S. Department of Justice, as well as private training.

The mediator practice of determining capacity has been promoted in mediating workplace, ADA, community, and guardianship disputes. This practice raises significant theoretical, practical, legal and ethical concerns for mediators. Key Bridge Foundation (KBF) proposes a new mediation framework specific to the ethics and principles of mediation as a distinct field. The new framework shifts the focus from determining capacity to the mediator’s role of facilitating mediation competencies in all parties. Instead of singling out people with disabilities, the new framework applies to all participants regardless of personal characteristics, all mediations regardless of subject matter and complexity, and all mediators regardless of philosophy and style of practice. The new framework recognizes that all participants have mediation competencies that fluctuate, emerge and can strengthen during the mediation process. Moreover, it is the fundamental role of the mediator to facilitate these competencies in an interactive, iterative process with participants.

Susan Crawford, Lewis Dabney, Judith Filner, and Peter Maida wrote, “From Determining Capacity to Facilitating Competencies: A New Mediation Framework,” and presented their research and conceptual framework at the annual conference of the Association for Conflict Resolution in San Diego, August 2002, and the ABA Section of Dispute Resolution in San Antonio, March 2003. This research article is scheduled for publication in “Conflict Resolution Quarterly,” 20:4(2003), Wiley Periodicals, Inc., A Wiley Company at Jossey-Bass.

Based on their work on this topic, Key Bridge Foundation has received funding from the U.S. Department of Justice to provide a series of one-day, advanced trainings for members of the Department of Justice ADA Mediator Roster. The trainings began in March 2003 and continue through June 2003 in six locations: Washington, DC; Orlando, FL; Houston, TX; Chicago, IL; San Francisco, CA; and New York, NY. In addition, KBF is offering advanced training to non-roster mediators beginning in June 2003. KBF welcomes questions, comments, and continuing dialogue at scrawford@keybridge.org.

March 2003

Yacht Club Southeastern, Inc. v. Sunset Harbour North Condominium Association, Inc.; 2003 WL 728957 (Fla. App. 3rd Dist 2003)

Sunset Harbour North Condominium Association sued Yacht Club Southeastern, a developer, for construction defects. Sunset brought the claim on behalf of the individual unit owners. The trial court ordered the parties to mediate in a court-run program. In mediation, Yacht Club made an offer to settle, which Sunset rejected. The mediation ended without a settlement, and Yacht Club then directly communicated their offer to the individual owners of the condominiums. Sunset moved for sanctions based on Yacht Club’s violation of a statute prohibiting disclosure of communications made during a court ordered mediation. The trial court granted sanctions and Yacht Club appealed. The Court of Appeals held the unit owners were the real parties in interest with Sunset and were, therefore, entitled to know about the mediation efforts. Because any real party in interest has a right to bring his/her own lawsuit, Yacht Club did not violate the prohibition regarding disclosure of communications. (KA)

Full opinion available at: www.3dca.flcourts.org/

Source: Willamette Law Online - Dispute Resolution

March 2003

The U.S. Equal Employment Opportunity Commission and the National Council on Disability are collaborating on two technical assistance documents and a training program on employment-related mediations involving parties and other participants with disabilities. The first document, geared to mediation providers in the public and private sectors, will explain the legal aspects of accessibility with an emphasis on practical aspects of accommodating parties with disabilities during the mediation process. The second document will provide potential parties with information on how the mediation process works, the right to reasonable accommodation during mediation, and participating to maximize their interests and outcomes. Publication is expected in late 2003, with training to commence in early 2004.

EEOC and NCD invite mediation providers and parties to share with us their experiences and successes in making mediation accessible to participants with disabilities. Also important are challenges that were not met successfully, and how, in retrospect, you think they could have been resolved. Your experiences will help us develop technical assistance that focuses on straight-forward and creative approaches to meeting accessibility challenges during mediation. Please e-mail Project Manager Kathleen Blank, with your recommendations, best practices and ideas at kablank@qwest.net.

Kathleen Blank is an attorney, professional mediator and consultant on disability policy and programs based in Glendale, Arizona. She is former Senior Attorney Advisor at the National Council on Disability. Her work focuses on promoting the civil and human rights of people with disabilities in the U.S. and abroad through national policies supporting their full inclusion, independence, and equal access to opportunities. Contact her at: kablank@qwest.net

February 2003

University Nursing Associates, PLLC v. Phillips, 2003 WL 328034, Miss.,2003. (KA).

John and Jay Diebold (the Diebolds) filed a malpractice negligence claim against their attorney, Steve Torvik (Torvik) who had represented the Diebolds in mediation. At mediation, Torvik agreed to the mediator's appraisal of corporate stock at $64,000. The Diebolds settled their claim based on this amount. An expert subsequently valued the stock at $500,000. The Diebolds were unsuccessful to set aside the settlement and sued Torvik for damages. The Court dismissed the Diebolds claim in holding that the Diebolds knew what they were settling on, what they would receive, and what they would forego. The Court expressly relied on the principle that mere dissatisfaction with a settlement will not support a negligence claim.

Available at Westlaw: 2003 WL 282430.

Source: Willamette Law Online - Dispute Resolution

February 2003

The Keybridge Foundation, in collaboration with CRInfo, and funded by the Hewlett Foundation, is pleased to announce the launch of the Clearinghouse for Mediation Program Managers website. This website will enable mediation program managers to network with other programs, share knowledge and expertise, and exchange information about current mediator management practices. Our focus is on assisting program managers as they create and manage rosters of mediators.

Whether the program serves a court system, community mediation center, state or federal agency, or private referrals, the Clearinghouse provides links, articles, and tools to support mediation program managers. Please visit the site at www.crinfo.com/mediation-program-managers and direct feedback to adr@keybridge.org .

February 2003

The Federal Mediation and Conciliation Service recently launched its newly redesigned Internet site, www.fmcs.gov/internet .

The site has a new look and features new pages, such as the Success Stories page, where a feature article describes other ways FMCS is employing cutting-edge technologies to address new challenges in conflict resolution faced by the labor relations community. A regularly changing feature will be the Case Studies page, which this month tells the story of a 1994 dispute at Ford Motor Company's Cleveland Engine Plant #2.

FMCS Director Peter J. Hurtgen stated, "We have always held that communication, accountability, accessibility and creativity are keys to successful conflict resolution. With the launch of this - the new FMCS web site - we are continuing that tradition."

FMCS was created in 1947 as an independent agency responsible for preserving and promoting labor-management peace.

January 2003

Members of the Virginia Association for Community Conflict Resolution are aware of Delegate Athey's proposed legislation to limit the provision of free mediation services for child custody, support and visitation cases to Virginia's indigent citizens (House Bill 1965 and House Bill 1966 pertaining to Senate Bill 127 of Virginia Code Section 20-124.4)

When Senate Bill 127 was introduced (the bill that provided for this mediation), directors from community mediation centers across Virginia questioned whether there should not be an income test to determine who should receive free services. But two years have passed since Senate Bill 127 was put into effect, thousands of Virginians have had access to mediation services, and center directors have had the opportunity to evaluate the program. Below is the information that was used to help us study this question. (The budget information comes from the Supreme Court of Virginia).

In fiscal year 2001 the Juvenile and Domestic Relations courts of Virginia adjudicated 56,575 cases. The cost to the state was $47,709,118 or $843 per case.

During fiscal year 2001 the number of cases that were mediated through Senate Bill 127 totaled 6,649 at a cost of $120.75 per case thanks to the generosity of Virginia mediators who received a stipend of $100 per case to provide both case management and mediation.

Center statistics show that over 80% of the people who are receiving mediation services earn less than $25,000 per year. Of the remaining group, we speculate that a large percentage of them will not participate in mediation if they have to pay for it. These cases will most likely be tried at a cost of $843 per case.

During fiscal year 2003 we anticipate that approximately 10,000 child custody, visitation and support cases could be mediated under Senate Bill 127. The cost to the state for mediating those cases would total $1,207,500. If 30% of these citizens pay for mediation on their own, the state would indeed save $300,000. But if even 10% of these cases are adjudicated because people do not want to pay for the mediation services (which we predict), the cost to Virginia to adjudicate these cases will be $843,000. There will be no cost savings to the state of Virginia, and instead more money will be needed.

We do not believe our already-tapped courts or clerks offices have the time, manpower, or inclination to gather income information. It would be especially difficult for court staff to gather income information from the non-petitioning party.

Given the high satisfaction rate from mediation (over 90%) as evidenced by exit evaluations, the high agreement rates (83%) and the cost savings to Virginians, it is to Virginia's advantage to keep this program funded. Mediation is a voluntary process and thousands of Virginians are choosing to use it and derive their justice in this way.

We are gathering anecdotal evidence from judges that seems to indicate that they see fewer return visits to court from parties who have mediated when compared with parties whose cases were adjudicated. We can infer that this is a large future cost savings to the state of Virginia that merits further study.

Virginia's community mediation centers, mediators from across the state, the Office of Dispute Resolution of the Virginia Supreme Court, and many local judges and court personnel have worked hard over the past two years to make the mediation program supported by Senate Bill 127 a successful one. Any alterations in the current process is likely to result in setbacks to the program and the potential elimination of some programs (resulting in fewer cost savings to the state).

We support limiting the application of 20-124.4 to Juvenile and Domestic Relations District Courts and omitting application to the Circuit Court where most parties are represented by attorneys and have the means to pay private mediators. We agree that mediators who offer professional services should expect to be compensated by the parties who can afford to do so in an appropriate manner.

After evaluating this information, members of the Virginia Association for Community Conflict Resolution conclude that Senate Bill 127 has given thousands of Virginians access to what many feel is a more appropriate arena to resolve family conflicts. Mediation is clearly working in Virginia from a social, financial and services perspective. Altering Senate Bill 127 by limiting the provision of free mediation services only to indigent citizens would result in increased costs to clients and government without any beneficial increase in satisfaction or outcome.

We have appreciated this opportunity to study the efficacy and cost savings of this program and are hopeful that our findings will be helpful to you.

Christine Poulson Virginia Association for Community Conflict Resolution

January 2003

Adm. James Loy, undersecretary of transportation for security, signed an order Jan. 9 prohibiting collective bargaining by Transportation Security Administration screeners after determining that "mandatory collective bargaining is not compatible with the flexibility required to wage the war against terrorism."

"Fighting terrorism demands a flexible workforce that can rapidly respond to threats," said Loy, who exercised his legal authority under Section 111(d) of the 2001 Aviation and Transportation Security Act. "That can mean changes in work assignments and other conditions of employment that are not compatible with the duty to bargain with labor unions." Loy said screeners enjoy many of the same protections as other federal employees, including equal employment opportunity and whistleblower protection. Several months ago, Loy sent a letter to all TSA employees stating his commitment to the creation of a model workplace once the agency met critical passenger and baggage screening deadlines. He recently re-affirmed his commitment by directing the establishment of a Model Workplace Group to design a plan involving all TSA employees - including screeners - for how best to address workplace issues. The program will be led by TSA's offices of civil rights, human resources, training and a new ombudsman. The group will look for ways to promote high performance and good management practices and propose strategies to prevent and resolve conflicts. Loy's order was in response to petitions filed with the Federal Labor Relations Authority by the American Federation of Government Employees, which asked for elections to designate the union as the exclusive representative of TSA security screeners at New York LaGuardia and Baltimore-Washington International airports.

Bobby Harnage, AFGE's president, said, "We believe Admiral Loy's order, which would deny airport screeners and baggage handlers the right to join a union, to be unlawful." The union filed a lawsuit Jan. 10 with the U.S. District Court for the District of Columbia challenging TSA's decision, claiming that Loy does not have the authority to prohibit screeners from organizing.

Source: http://www.fpmi.com

January 2003

During a Jan. 9 ceremony at the Office of Personnel Management, OPM Director Kay Coles James honored the achievements of agencies with highly effective alternative dispute resolution programs. James also stressed the need to continually improve the programs so that their effectiveness is maintained.

"The programs we honor today are first-rate examples of good human-capital practices that help carry out the President's Management Agenda," said James. "But we must continue to improve the programs so that we can effectively and efficiently manage any personnel disputes that may arise."

The programs that were presented with the 2002 OPM Director's Award for Outstanding ADR Programs demonstrated creative approaches to settle workplace disputes, and each of the programs helped bring down the costs normally associated with the traditional, formal proceedings under the federal government's dispute resolution system.

Recipients of the award are: the Farm Service Agency's Workplace Dispute Resolution Program; the Department of the Navy's Workplace Alternative Dispute Resolution Program; and the Department of Health and Human Services' Washington D.C.-Baltimore Area Sharing Neutrals Program.

Attendees at the ceremony included agency ADR specialists; directors of agency legal offices and legal staff; human resources directors and staff; and Equal Employment Opportunity directors and specialists.