March 5, 2002

WASHINGTON, D.C., - Nancy Rogers, dean of the Moritz College of Law at The Ohio State University, has been chosen to receive the D'Alemberte/Raven Award from the American Bar Association Section of Dispute Resolution.

The award, to be presented at the section's spring conference on April 5 in Seattle, was created to recognize outstanding service in dispute resolution and is named in honor of former ABA presidents Robert D. Raven and Talbot S. ("Sandy") D'Alemberte.

Rogers has been an active proponent of mediation. She recently served as conference reporter for the Uniform Mediation Act, and was the faculty coordinator for the research and drafting support of the ABA Section on Dispute Resolution when the section met jointly with the National Conference Drafting Committee. Rogers has also served on several dispute resolution committees, including the ABA Standing Committee on Dispute Resolution. For much of her 20-year teaching career, Rogers served as Vice Provost at Ohio State and Associate Dean of Academic Affairs at the Moritz College of Law. She was also a visiting professor at Harvard Law School. Rogers has written or co-written several law school texts, two of which were awarded a Book Prize from the CPR Institute for Dispute Resolution. Currently, Rogers serves on the Board of Directors of the Legal Services Corporation, which distributes federal funding to provide civil legal services to low income persons. She is also on the Executive Committee of the American Association of Law Schools, and just completed a term as president of the Columbus Bar Foundation.

A graduate of the University of Kansas and Yale Law School, Rogers was a law clerk for U.S. District Judge Thomas D. Lambros and a legal services lawyer before entering teaching. The Moritz College of Law at The Ohio State University is Ohio's flagship law school. Approximately 650 students attend classes at the school's John Deaver Drinko Hall, located at 55 West 12th Avenue.

The American Bar Association is the largest voluntary professional membership association in the world. With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.

Contact ABA Section of Dispute Resolution for more information on the D'Alemberte/Raven Award and the "New Vistas in Dispute Resolution" Conference in Seattle, April 4-7, 2002.

February 2002

Statistics taken from state and local governments and the private sector compiled by the Equal Employment Opportunity Commission show that there was an increase in discrimination charges filed against employers to its highest level since the mid-1990s.

The types of discrimination with the highest rate of increase in FY 2001, compared to the prior year, were allegations of discrimination based on age (one and one-half percent increase) and disability (one-half percent increase). All other types of charge filings either declined slightly (less than one-half percent) or remained level compared to FY 2000.

"The incidence rate of age and disability discrimination appears to be on the rise with the graying of America," said EEOC Chair Cari M. Dominguez. "Employers must be vigilant in preventing such characteristics from being factored into their employment decisions."

In addition to the rise in workplace bias filings, the FY 2001 data also show:

* The private sector pending inventory of charges (backlog) decreased by five percent from the previous year to 32,481 - the lowest level in nearly two decades. * The average charge processing time for private sector charge filings stood at 182 days - a 34-day decline from FY 2000 and the lowest level since the early 1980s. * The average time to resolve a charge through voluntary mediation was 84 days - a drop of 12 days from the prior year. * The merit factor rate (charges with meritorious allegations and/or outcomes favorable to the charging party) increased to 22 percent - the highest level since the early 1980s.

Of the 80,840 total charges (1) filed with EEOC, the most frequent types of discrimination alleged were based on:

* Race - 28,912 or 35.8 percent of all charge filings. * Sex/Gender - 25,140 or 31.1 percent of all filings. * Retaliation (all statutes) - 22,257 or 27.5 percent of all filings. * Age - 17,405 or 21.5 percent of all filings. * Disability - 16,470 or 20.4 percent of all filings.

Other types of charge filings included allegations based on:

* National Origin - 8,025 or 9.9 percent of all filings. * Religion - 2,127 or 2.6 percent of all filings. * Equal Pay - 1,251 or 1.5 percent of all filings.

The number of total charges (80,840) reflects the number of individual charge filings with EEOC against private employers and state and local governments. Specific types of alleged discrimination and their percentages of total charges add up to more than 100% because multiple types of discrimination are often alleged in individual charges.

Source: www.fpmi.com

February 2002

Mediation: prevailing party status arises only in approved or sanctioned mediation agreement

Luis v. Joliet Township High School Dist., 2002 WL 54544 (N.D. Ill. 01/15/02)

Fee-shifting statutes, such as the Individuals with Disabilities Education Act (IDEA), grant attorney fees to the 'prevailing party,' i.e. the party that gets a favorable judgment on the merits or a settlement agreement enforced through a consent decree. Plaintiffs sued defendant school district. "At mediation, the parties reached an agreement that contained the relief requested by plaintiffs. . . . The agreement was read into the record before a hearing officer. . . . Plaintiffs then filed this action seeking recovery of attorneys' fees and costs under the IDEA." The court held that a mediated settlement agreement that is not approved or sanctioned by a hearing officer, but is merely read into the record is not a consent decree, and is simply a private settlement agreement that does not confer prevailing party status.

Available online at: www.ilnd.uscourts.gov/RACER2/index.html

Feb. 04, 2002

Today the Uniform Mediation Act passed the American Bar Association House of Delegates. The vote in favor of the UMA was overwhelming -- 537 delegates voted for the Act.

January 2002

US Supreme Court - Arbitration agreement does not bar EEOC's suit for victim-specific remedies. (6-3) EEOC v. Waffle House ( US Supreme Court 01/15/2002)

When employees have ceded the right to sue their employers, the federal Equal Employment Opportunity Commission may step in to win back pay or other help for workers, the Supreme Court ruled this week.

The 6-3 ruling gives employers' less power to settle on-the-job disputes out of court and clarifies the scope of the EEOC, a federal anti-discrimination agency.

Upon being hired, a cook agreed that any workplace dispute would be resolved by arbitration. The cook was later fired after having a seizure at work. The court ruled that the EEOC may, on behalf of the cook, sue in federal court.

The decision sets a precedent that the EEOC, in some instances, may ignore an arbitration agreement in order to do for a wronged employee what the worker cannot, or possibly will not, do for himself.

The court majority's written opinion states that the EEOC is free to decide if it is in the public's interest to pursue a particular lawsuit. However, Justices Clarence Thomas, William Rehnquist and Antonin Scalia did not share the opinion that the EEOC may do on behalf of an employee that which an employee has agreed not to do for himself.

"The Supreme Court's decision reaffirms the significance of the EEOC's public enforcement role," said EEOC Chair Cari M. Dominguez. "The ruling embraces the view that, as the agency entrusted to enforce the federal statutes prohibiting discrimination in the workplace, the EEOC is not constrained in any way by a private arbitration agreement to which the EEOC is not a party. The decision also acknowledges, as does the EEOC, the goals of efficiency and economy that may be furthered in particular cases by the private arbitration system."

The Court recognized that the EEOC is authorized to bring suit in its own name and that the EEOC has the prerogative, as a federal enforcement agency, to decide what relief is appropriately sought in a particular action brought by the EEOC.

The ruling was a blow to employers - the Court held that the EEOC could sue on behalf of a short-order cook fired after he had a seizure at a Waffle House restaurant. As is the case with many U.S. workers, the employee agreed when he was hired that any on-the-job dispute would be resolved by arbitration. However, the EEOC signed no such an agreement and therefore cannot be bound by it, Justice John Paul Stevens wrote for the majority in the 6-3 decision.

Source: www.fpmi.com

January 2002

The action by the Bush administration earlier this week to vacate all seven seats on the Federal Service Impasse Panel has caused a commotion among the federal labor relations community.

The action, apparently taken without prior notification, could be a potentially serious and costly disruption in federal sector labor-management relations, according to several labor-management officials.

Several federal agencies and labor organizations, including the National Treasury Employees Union, have cases pending before the FSIP, and other cases "likely are in the pipeline" heading for FSIP consideration, said NTEU President Colleen Kelley.

Additionally, the FSIP's parent body, the three-member Federal Labor Relations Authority, which has overall responsibility for federal sector labor-management relations, has been operating for several months without anyone filling its key position of General Counsel.

That, Kelley said, has disrupted consideration of matters within the responsibility of the FLRA, including the issuance of unfair labor practice complaints. Among the FLRA General Counsel's other key responsibilities are to take steps to encourage the use of alternative dispute resolution techniques and to expand labor and management training and education programs.

The FSIP, which operates as an arm of the FLRA, is responsible for resolving impasses that might occur involving federal agencies and their unions arising from negotiations over conditions of employment under several important statutes, including the key Federal Service Labor-Management Relations Statute.

"While the President has the right to take this action" with respect to the FSIP, Kelley said, "it was done with no notice and with no indication of when these positions would be filled."

Source: FPMI

January 2002

The Supreme Court limited the reach of a landmark disability rights law with a unanimous decision Tuesday that an assembly line worker with carpal tunnel syndrome was not entitled to special treatment on the job, according to published reports.

The Supreme Court ruled that Ella Williams' partial disability did not obligate her employer, car manufacturer Toyota, to tailor a job to suit her wrist, arm and shoulder problems.

The National Organization on Disability (NOD) is disappointed by the Supreme Court decision, said group spokesperson Brewster Thackeray. "The disability community values the ADA as a civil rights law. It was written to protect people if they have, or develop, a condition that impacts their ability to fully participate in major life activities," Thackeray said.

The 1990 Americans With Disabilities Act guarantees equal treatment for those whose disabilities "substantially limit" their ability to perform what the law terms "major life activities," such as caring for oneself. Williams' disability did not prevent her from doing many tasks at home and work. A federal appeals court found that because her physical problems substantially limited her ability to perform manual tasks at work, she was disabled under the ADA.

"This was error," stated the Supreme Court in an opinion written by Justice Sandra Day O'Connor. In cases like Williams', "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job," the court noted.

Source: http://www.fpmi.com

January 2002

The Fourth Party and Beyond

February 25-March 1, 2002

The Center and the Legal Studies Department at the University of Massachusetts, Amherst will hold their fourth all-online conference, Cyberweek 2002, February 25 - March 1, 2002.

Cyberweek 2002 has two related themes: First, what is the current context of ODR? i.e. what works? how? where? why? Second, where might we be going in this world of IT and dispute resolution? Recognizing dramatic shifts in IT economics and online markets the Center wants Cyberweek 2002 to be practically oriented as well as theoretically aggressive and forward looking.

The Center is interested in highlighting what works currently in online conflict management and dispute avoidance as well as exploring developmental directions and potential systems and/or products which may further facilitate online transactions and discourse.

A Sampling of Activities (as of 12/15/01):

Technology Demonstrations by ODR service providers and online collaborative tool developers

Showcasing of IT products and services which may have ODR applications

Prisoners' Dilemma Exercise - Simulated Divorce Arbitration online

Distance Learning / Distance Interaction Colloquium

Prototype online negotiation competition amongst law school teams from Australia, Canada, France, Great Britain, New Zealand, and the U.S.

Lectures and Discussions by experts. entrepreneurs, professionals, and scholars in law, dispute resolution, information technology, and e-commerce

Seminars and presentations on future directions in IT and Conflict Management

Real-time Chats with invited guests

Second offering of the Center's professional development mini-course for IT novices

Arbitrators' Roundtable

Any questions or comments, or suggestions for Cyberweek? Please contact Alan Gaitenby, University of Massachusetts Center for Information Technology and Dispute Resolution, via email or 413-577-1394.