ADR News Archive for 1998-1999
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The Willamette Law School Dispute Resolution Information Service.
PROCLAMATION OF THE GOVERNOR OF CALIFORNIA
MEDIATION WEEK - MARCH 14-20, 1999
WHEREAS, conflict is common in our society, and our people need forums other than our courts for the resolution of conflict; and
WHEREAS, the resolution of many disputes can be unnecessarily costly, time consuming, and complex when achieved through formal court proceedings in which parties are adversaries and are subjected to formalized procedures; and
WHEREAS, the State of California has promoted mediation efforts through the enactment of several mediation statues, including the Dispute Resolution Programs Act, under which counties may fund dispute resolution programs by devoting up to eight dollars ($8.00) of their court filing fees;
WHEREAS, the Department of Consumer Affairs oversees the 31 counties and 77 programs now participating in the Dispute Resolution Programs Act, and the State of California now has thousands of people trained as mediators as well as many agencies, organizations and attorneys who specialize in providing dispute resolution services who provide ready assistance to those in need of such services; and
WHEREAS, in an effort to resolve conflicts amicably, improve relations among our people and within neighborhoods and families, and between consumers and businesses, and relieve the burden of litigation which is overwhelming our judiciary, increasing numbers of residents are turning to dispute resolution services with resulting social, economic, and personal benefits; and
NOW, THEREFORE, BE IT RESOLVED that I, Gray Davis, the Governor of California, hereby proclaim the week of March 14-20, 1999 as "CALIFORNIA MEDIATION WEEK" and hereby urge our people to participate in the local activities being held to commemorate this week.
Gray Davis
Governor of California
Peace Agreements 1989-99
The Conflict Data Service (CDS) at INCORE has recently produced a new section to its site on 'Peace Agreements 1989-99'. This is available on line at http://www.incore.ulst.ac.uk/cds/agreements/index.html
The 1990s have been a decade of peace processes. Although they vary enormously in complexity,number of actors, timescale and outcome, peace processes have become the orthodox way in which low intensity, seemingly intractable, ethnic conflicts reach an accommodation in the 1990s. A clear trend towards internally agreed initiatives, rather than externally imposed settlements, is noticeable. Yet, the majority of peace accords fail. Often, peace accords fail to anticipate post-conflict problems, or are regarded as a staging post in the conflict. The accords are worth examining in detail though. This is particularly the case from a comparative perspective. It has become increasingly common for actors in one peace process to borrow from the experiences of others. To this end, the publication and widespread dissemination of recent peace accords has enormous merit.
The CDS hopes that you find this material useful.
Real hope for less TV violence Recently posted To: "dispute-res@listserv.law.cornell.edu"
by Ron Surratt
I have just read what I believe is good news for those people who would like to see less violence on TV. The lastest issue of Scientific American cites a recent study (at http://www.apa.org/journals/xap/xap44291.html ) by Brad Busman of Iowa State University which concludes that people who watch violent TV shows do not remember the products advertised as well as those people who watch less violent shows. The study ends with:
" There are at least three reasons why advertisers might want to think twice about sponsoring violent programs. First, most Americans are upset by the excessive amount of violence shown on television. Second, television violence has a negative impact on society because it increases aggressive behavior in viewers. Third, violent programs decrease viewers' memories of brand names and commercial messages. Thus, sponsoring violent programs might not be a profitable venture for advertisers."
After many years of being informed about the first two with not much impact, I predict that the sponsors of TV programs, IF INFORMED of the third reason, will willingly pay more for violence free programming. I think the TV producers and programmers would be very interested in the discovery of such a cash cow. If you think so too then please contact as many of such people as you can and inform them. They should thank you.
I thank you for your any effort you can give.
Regards,
Ron Surratt
Email: rsurratt@mcn.org
Arbitrator's Subpoena Enforced
American Federation of Television and Radio Artists v. WJBK-TV (6th Cir. 1/14/99)
Pierce, a local television celebrity was fired after allegedly misusing
automobile privileges. During the dispute, the arbitrator subpoenaed
information from the auto supplier, a third party not bound by the
arbitration clause. The supplier refused to comply and the district court
affirmed this refusal despite recognizing its authority to enforce the
subpoena under section 301 of the Labor Management Relations Act (LMRA).
The Court of Appeals reversed, stating that under section 7 of the FAA, an
arbitrator can compel evidence deemed material to the case. The court
concluded that it was for the arbitrator to decide and because the record
did not indicate whether this determination had been made, it was error
for the district court to impose its judgment.
[Full Decision On Westlaw: 1999 WL 11496]
Choice Of Forum Provision Voided
Keystone, Inc. v. Triad Systems Corp. (Mont. 12/30/98)
*Opinion has not been released for publication and is subject to revision or withdrawal.
Keystone, a Montana corporation, purchased a $250,000 computer system from
Triad, a California corporation, which allegedly failed to work. Keystone
filed a complaint after Triad refused to refund its money and Triad sought
to compel arbitration in California pursuant to the contract. Keystone
agreed to arbitrate, but only in Montana. The Montana Supreme Court
voided the California forum provision in reliance on MCA sections
28-2-708, 27-5-323 which invalidate forum clauses that require Montana
residents to seek redress in out of state tribunals. The court reached
this conclusion after finding that the Federal Arbitration Act did not
preempt Montana law because Congress' objectives were not frustrated as
the forum voiding laws apply equally to all contracts and do not nullify
the obligation to arbitrate.
[Full Decision On Westlaw: 1998 WL 914233]
Fee-Splitting Clause Voids Individual Arbitration Agreement.
Shankle v. B-G Maintenance (10th Cir. 1/05/99)
Shankle sued claiming his discharge violated Title VII, the ADA, and the ADEA. The District Court denied the employer's motion to compel arbitration; the 10th Circuit affirmed.
Shankle was a shift manager for a janitorial company. He signed an arbitration agreement which expressly covered Title VII, ADA, and ADEA claims. The agreement also provided that he would be responsible for half of the arbitrator's fees. After his discharge, the parties submitted the claims to an arbitrator who charged $250 per hour and required the parties to pay a $6,000 deposit. Shankle later canceled the arbitration and filed suit.
The court stated the issue thus: "Is a mandatory arbitration agreement, which is entered into as a condition of continued employment, and which requires an employee to pay a portion of the arbitrator's fees, enforceable under the Federal Arbitration Act?" The court's answer: "No."
The court reasoned that the clause requiring Shankle to pay half of the arbitrator's fees will "actually prevent an individual from effectively vindicating his or her statutory rights." The court estimated Shankle's share of the fee would be between $1,875 and $5,000, which he could not afford. Thus, the employer did not provide an "accessible forum," and that "undermines the remedial and deterrent effect of the federal anti-discrimination laws."
The court rejected the employer's argument that fee-splitting ensures the neutrality of the arbitrator, pointing out that arbitrators can be impartial even if only one party pays, and that they are covered by professional and ethical standards. The court also rejected the employer's invitation to remove the fee-splitting provision and compel arbitration.
[Willamette Law School Faculty Editor's Comment: The court clearly stated that the Federal
Arbitration Act applied to this case, but did not identify anything in
that statute which would support its reasoning. If the reasoning rests on
something in the anti-discrimination statutes, the court does not cite to
it, but merely recites the basic policies underlying those statutes. The
court's primary reliance is on Cole v. Burns International Security (DC
Cir 02/11/97), which contains language to the effect that an individual
employee cannot be required to pay any portion of the arbitrator's fee
(one judge dissenting on that point), but which actually enforced the
arbitration clause after interpreting it to mean that the employer would
pay the whole amount.]
[Full Decision Online At:
http://lawlib.wuacc.edu/ca10/cases/1999/01/97-1130.htm]
Choice Of Arbitration Procedures One Of "Procedural Arbitrability", Subject To Arbitrator's Decision
Bell Atlantic Inc. v. Communications Workers of America, AFL-CIO, Local 13000 (3rd Cir. 1/6/99)
Bell and the Communications Workers of America (CWA) entered into a CBA.
The CBA outlined two different arbitration procedures, "regular
arbitration" and "expedited arbitration". The CBA also outlined which
procedure was to be used in certain situations, but left open some types
of disputes in which either procedure could be used. Bell wanted to
reorganize its administrative units, and the CWA claimed that its
reorganization was in violation of the CBA. Bell wanted to use "expedited
arbitration" while the CWA wanted the regular procedure. Bell filed for a
declaratory judgment to determine which procedure would govern. The
District Court ruled in favor of Bell holding that the choice of procedure
was "substantive", not "procedural". The Court of Appeals reversed
stating that procedural issues are to be decided by the arbitrator, and
that the choice of arbitration procedures was a "procedural issue".
[Full Decision on Westlaw: 1999 WL 3999]
Unfair Labor Practice To Insist On Bargaining Over Interest Arbitration Clause
International Association of Firefighters, Local 1264 v. Municipality of Anchorage (Alaska 1/8/99) As parties to a series of collective bargaining agreements, the Municipality of Anchorage and the International Association or Firefighters(IAFF) for many years included an interest arbitration clause in their agreements. During contract negotiations in 1991 and 1994, IAFF desired to continue the practice, insisting inclusion of the interests arbitration clause in the agreement, while the Municipality did not. The Municipality filed unfair labor practice charges with the Anchorage Municipal Employee Relations Board, alleging that IAFF's insistence on bargaining over the clause was an unfair labor practice. The board concluded that an interest arbitration clause was a nonmandatory bargaining subject. The board ruled that IAFF had committed an unfair labor practice by insisting on bargaining over the clause, and ordered IAFF to cease and desist demanding inclusion of the clause in the agreement. The Supreme Court affirmed the board's ruling. [Full Decision On Westlaw: 1999 WL 5328]
AAA Creates Federal Center For Dispute Resolution In Washington
The American Arbitration Association recently announced the creation of
its Federal Center for Dispute Resolution in Washington, D.C., a national
unit designed to meet the increased alternative dispute resolution needs
of the federal government.
Details: http://www.adr.org/drt/federal_center_created.html
Air Force Launches ADR Website
The Air Force has launched an ADR website that includes the full text of many primary and secondary federal ADR materials. The site also includes many links to other ADR resources. Details: http://www.adr.af.mil
New York State Public Dispute Resolution Act
The proposed legislation is based in part on the federal Administrative
Dispute Resolution Act. The bill incorporates many of the best features
of the laws of other jurisdictions and takes a two-step approach to public
ADR. First, it explicitly authorizes and encourages state agencies to
employ and experiment with ADR. The authorization is broad but
permissive; ADR is never mandated. ADR Coordinators are appointed within
each agency. Second, the bill also provides for a committee to provide
information and training.
Details: http://www.capital.net/~jerryn
Sanction As Attorney Fees Were Improperly Awarded
Texas Parks & Wildlife Dept. v. Davis (Tex.App. 12/10/98)
Davis sued Texas Parks and Wildlife Dept. for personal injuries he
sustained when a concrete bench collapsed under him at a state park. The
trial court rendered judgment for Davis and sanctioned the Dept. for its
alleged failure to negotiate in good faith during court ordered mediation.
The Dept. appealed on four grounds. The Court of Appeals affirmed on the
jury verdict as to damages and liability as well as the sanction for
imposing costs of mediation, but reversed as to awarding of attorney fees.
The court found that since the Dept.'s written objection to mediation was
overruled by the court and that the Dept. attended the mediation and made
an offer, attorney fees were improper to award.
[Full Decision On Westlaw: 1998 WL 849410]
Court Endorses U-4 Form Arbitrations, But Employer Loses Case
Rosenberg v. Merrill Lynch (1st Cir 12/22/98)
Rosenberg sued her employer, claiming her discharge violated Title VII and
the ADEA. The employer moved to compel arbitration because Rosenberg had
signed a standard securities industry U-4 Form, which contained an
agreement to arbitrate. The District Court denied the motion to compel
arbitration; the 1st Circuit affirmed. The District Court's reasoning was
that the Civil Rights Act of 1991 precludes arbitration of discrimination
claims, and that the New York Stock Exchange arbitral forum was inadequate
due to "structural bias." The 1st Circuit disagreed with the District
Court's reasoning, and affirmed on the independent ground that arbitration
would not be "appropriate" because Rosenberg had not been given external
documents referred to in the form.
(1) Title VII, as amended by the 1991 Civil Rights Act, does not, as a
matter of law, prohibit pre-dispute arbitration agreements. [Every
circuit to address this issue, except the 9th, has reached the same
conclusion.] (2) The Older Workers Benefit Protection Act (OWBPA), does
not, as a matter of law, prohibit pre-dispute arbitration agreements.
(3) Absent a showing of actual bias in the arbitral forum (which was
absent in this case), a district court should order arbitration. (4) The
District Court incorrectly found that the NYSE forum suffers from
"structural bias." (5) Rosenberg's arbitration agreement was not
unconscionable. (6) The agreement to arbitrate cannot be enforced in this
case. Nowhere in the U-4 Form is there any explicit reference to
employment disputes. The U-4 Form recites an obligation to arbitrate "any
dispute . . . that is required to be arbitrated under the rules,
constitutions, or by-laws of the organizations indicated in Item 10."
However, the employer did not give Rosenberg any of the relevant
documents. The U-4 Form also recited that Rosenberg was familiar with
these documents, and her supervisor's signature on the form was a false
certificate. The result is that arbitration would not be "appropriate,"
which is the standard specified in the 1991 Civil Rights Act.
[The Willamette Law School Faculty Editor's Comment: Although the employer lost on its motion to
compel arbitration, this case is actually a ringing endorsement for the
enforcement of pre-dispute arbitration clauses in employment
discrimination cases. All the employer had to do in this case was give
the employee the external documents which were referred to in the
arbitration agreement, or spell out in the arbitration agreement itself
that it covered employment disputes.]
[Full Decision Online At:
http://www.law.emory.edu/1circuit/dec98/98-1246.01a.html
Party Was Not Prejudiced By Participating In Mediation
WWOR-TV, Inc. v. Local 209, et al. (2nd Cir. 12/1/98)
WWOR-TV laid off several employees who were union members. WWOR
reemployed the laid-off workers to do substantially the same work as they
had done before but on less favorable terms. The Union demanded
arbitration and the arbitrator entered an award for the Union. WWOR
petitioned to have the award vacated and the Union cross-petitioned to
have the award confirmed. The district court granted the Union's motion.
WWOR appealed arguing (1) there was no evidence before the arbitrator on
which she could have found for the Union, (2) the arbitrator based her
award in part on information she learned in her capacity as mediator
rather than arbitrator and that in doing so violated an agreement whereby
the parties were guaranteed that they would not be prejudiced by
participating in mediation. The Court of Appeals affirmed finding that
the arbitrator's award drew "its essence from the collective bargaining
agreement" and the reasoning under the contract was satisfactory. Further
the court found that WWOR was not prejudiced by its participation in
mediation because the information heard from counsel during arbitration
itself was sufficient to support the arbitrator's decision.
[Full Decision On Westlaw: 1998 WL 852698]
Challenge To Termination Excluded From Arbitration
Keymer v. Management Recruiters International, Inc. (8th Cir. 12/4/98) Keymer sued Management Recruiters International (MRI) alleging MRI terminated his employment because of his age. MRI moved for an order staying all proceedings pending arbitration. The district court denied the motion finding that the employment agreement excluded the dispute from arbitration. MRI appealed the denial of the motion. The Court of Appeals found that Keymer's ADEA challenge to the termination of his employment is excluded from the agreement to arbitrate by the plain language of the parties' agreement.
[Full Decision On Westlaw: 1998 WL 834348]
Award Vacated & Case Remanded Because Decision May Not Have Been Based On Relevant Facts & Circumstances
Bell Packaging Corp. V. Graphic Communications International Union Local 415-S (N.D. Ill. 10/22/98)
Union member grieved after being fired for failing a second drug test that she was not given an
opportunity for rehabilitation and that the test results were improperly publicized. When the dispute
was submitted to arbitration, the union raised new objections, contending that the drug test was
flawed because the signature on the chain of custody form was not the grievants, nor was the urine
sample continuously in her sight until sealed as required by the testing procedure. Although Bell
objected to this new complaint, it was assured by the arbitrator that they would be given an
opportunity to rebut the evidence if he found that the evidence was properly raised. Through the
course of the hearing, the arbitrator apparently expressed no conclusions regarding the new
evidence. The arbitrator found for the grievant. In his opinion, the arbitrator cited Bell’s complete
lack of rebuttal evidence and Bell appealed the decision. In remanding the case back to arbitration
to determine whether Bell should be given an opportunity to present rebuttal evidence, the court
found that arbitrator’s muddled conclusion did not offer the court a clear record to review.
[Full Decision on Westlaw: 1998 WL 748270]
Statute Relied On To Compel Arbitration Found To Be Unconstitutional As Applied
Angostura International Ltd. v. Melemed (D. Minn. 11/6/98)
Angostura, a food producer, discontinued its long term, unwritten, sales relationship with its
brokerage company, Melemed. Angostura sued to resolve the parties rights resulting from the
termination and Melemed sought to compel arbitration pursuant to the Minnesota Sales
Representative Act (MSRA). The MSRA provides that representative may either arbitrate or
proceed in court, while a manufacturer may only arbitrate a dispute. The act further provides that it
applies to any such agreement entered into or renewed on or after August 1, 1990. The District
Court found that the statute as applied to this case, violated the Contracts Clause of the Constitution
by retroactively applying to, and substantially impairing, the existing contract that was “renewed” by
the mere continuation of the unwritten agreement without having a significant and legitimate public
purpose in doing so.
[Full Decision on Westlaw: 1998 WL 783284]
Trial Court Has Authority To Consolidate Contractual Arbitration
Mercury Insurance v. Superior Court (Cal. 11/9/98)
The Superior Court of San Bernardino County consolidated actions for arbitration and trial after an
insured party brought personal injury action and sought uninsured motorist benefits. The insurer,
Mercury Insurance Group, appealed and the Supreme Court affirmed holding that the trial court has
authority to consolidate a contractual arbitration
proceeding between an insurer and an insured as to uninsured motorist coverage in the insured's
pending action against third parties for all purposes, including trial, in order to avoid conflicting
rulings on a common issue of law or fact.
[Full Decision on Westlaw: 1998 WL 774455]
Presumption Of Causation Must Be Applied In Arbitration
A.H. Robins Company, Inc. v. Dalkon Shield Claimants Trust (4th Cir. 10/26/98)
Lenore Widmark, a Dalkon Shield claimant decided to resolve her claim against A.H. Robins
Company through binding arbitration. The arbitrator issued an unfavorable decision, concluding that
her pelvic inflammatory disease was not the result of her use of the Dalkon Shield. Widmark filed a
motion to vacate the arbitrator’s decision. The district court denied the motion and Widmark
appealed to the Fourth Circuit Court of Appeals. The Court held that Widmark was entitled to a
presumption of causation, which the arbitrator failed to apply. The presumption of causation in
arbitration was established in a prior proceeding and requires that the claimant establish use of the
Dalkon Shield and a pelvic inflammatory disease. Because Widmark established both of these
elements and the arbitrator failed to apply the presumption the Court vacated the award.
[Full Decision on Westlaw: 1998 WL 746854]
Arbitration Of Antitrust Disputes
By Lawrence W. Newman and Michael Burrows
Although it is difficult to assess statistically the frequency with which antitrust claims have been
subject to arbitration, recent cases and commentary have discussed the most effective ways in which
antitrust claims may be handled in arbitration. This article summarizes the most important cases in
this complicated area.
Details: www.ljextra.com/practice/internat/0519intarb.html
Expanded Review Of Arbitration Decisions
By William Nortman and Franklin D. Ormsten
An appeal decided late last year by the U.S. Court of Appeals for the Eleventh Circuit may well
presage a new era marked by more intensely litigated arbitrations and by a growing expansion of
judicial review for arbitration decisions. Montes v. Shearson Lehman Brothers
Details: www.ljx.com/practice/arbitration/0709arbrev.html
ADR Act Of 1998 President Clinton signed the Alternative Dispute Resolution Act of 1998, HR 3528, on October 30. This is the law that requires each federal district court to devise and implement its own ADR program and to encourage and promote use of ADR in its district.
Details: thomas.loc.gov/home/thomas2.html
Federal Acquisition Regulations ADR Policy The Government announced today (10/30/98) that its Federal Acquisition Regulations (FAR) which define the policies and contract clauses under which the US Government purchases most goods and services are amended effective December 29, 1998, to provide greater coverage/clarity in the area of Alternative Dispute Resolution (ADR) policy guidance. Highlights of changes in FAR Parts 6, 24, and 33 include the following:
· If this otherwise voluntary method for dispute resolution under the FAR is requested by the Government or a Contractor, specific reasons must be provided if it is rejected by either.
· The rule clarifies the regulatory authority and permits a contract with a neutral person as an exception to requirements for full and open competition.
· ADR means "any type of procedure or combination of procedures voluntarily used to resolve issues in controversy. These procedures may include, but are not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombudsmen."
· Revises requirements for certification of a claim under the Administrative Dispute Resolution Act to conform to the requirements under the Contract Disputes Act.
· Specifies that certain dispute resolution communications are exempt from disclosure under the Freedom of Information Act.
· Unless required by law, arbitration cannot be required as a condition of contract award. Flexibility is provided to Contracting Officers to use ADR "to resolve the issues in controversy as they arise." Binding arbitration may be agreed to only as specified in agency "guidelines." However "an agreement to use arbitration shall be in writing and shall specify a maximum award that may be issued by the arbitrator, as well as any other conditions limiting the range of possible outcomes."
Thanks to Charles Rumbaugh for this info: For more info contact Charles at: CERumbaugh@aol.com
Mediation Law Project of ABA and NCCUSL Announces New Web Site
WASHINGTON, D.C., Oct. 23, 1998
The Mediation Law Project, a joint project of the American Bar Association Section of Dispute Resolution and the National Conference of Commissioners on Uniform State Laws, has established an Internet web site to make access to its work and participants broadly available to the public.
According to the project's three co-chairs, Ohio Supreme Court Chief Justice Thomas J. Moyer, former ABA President Roberta Cooper Ramo, and Illinois Chancery Judge Michael B. Getty, the site will allow the many mediation and other dispute resolution professionals who are interested in the work of the Drafting Committees to keep up with their progress and provide comments and other feedback when they desire. The site is currently hosted by the Stanford Center on Conflict and Negotiation, and may be found at http://www.stanford.edu/group/sccn/mediation Visitors will find answers to frequently asked questions, information about the unique structure of the project, the first co-drafting effort by the two organizations, as well as biographical information about the members of the project's drafting committees, academic advisory faculty, and reporters. "We will also be making drafts of model or uniform mediation legislation available on our web site as soon as they are ready for public distribution," said Nancy H. Rogers, the reporter for the NCCUSL Drafting Committee and coordinator of the academic advisory faculty for the ABA Drafting Committee. Rogers said the site also includes a comprehensive list of press releases about the project, participation opportunities, as well as an e-mail system that will permit individuals and organizations to provide comments on drafts and other aspects of the project. Portions of the site have been restricted to members of the drafting committees and the academic advisory faculty to permit exchanges of rough drafts, she added. Noting that the drafting committees have chosen to work on issues sequentially, Rogers said an initial draft of a model or uniform provision on the first issue the committees have addressed, confidentiality in mediation, could be ready for public comment by the end of 1998, and will be available to the public on the site. Rogers said the ABA and NCCUSL Drafting Committees are expected to meet in November to work on the draft of a proposal for confidentiality legislation.
For more information on the web site or the project, contact Richard C. Reuben, Stanford Center on Conflict and Negotiation, Stanford Law School, Crown Quadrangle, Stanford, Calif. 94305, richardr@leland.stanford.edu
ADA Claim Not Subject To Mandatory Arbitration
Dickerson v. United Parcel Service (N.D.Tex. 10/6/98)
After failing to sustain his claim of discrimination relating to an
alleged on the job back injury, Dickerson sought to have his grievance
pursued in arbitration. His union representative, the Teamsters, refused
to do so and Dickerson sought to pursue his ADA claim in court. The court
concluded that an employee asserts an independent statutory right - one
outside the collective bargaining agreement (CBA), by filing a Title VII
claim. The court reasoned that a CBA which contains an arbitration clause
is distinguishable from a contract containing such a clause which applies
to an individual. Therefore, arbitration of a CBA dispute which does not
contemplate statutory claims, is necessarily limited to contractual
remedies and can not be extended to statutory rights.
[Full Decision On Westlaw: 1998 WL 713290]
Arbitrator May Not Issue Enforceable Subpoenas
Michigan State Employees Assoc. v. Michigan Liquor Control Com.
(Mich.App. 10/6/98) Employees challenged a decision to eliminate state operated liquor warehousing and distribution. During the arbitration, the arbitrator issued subpoenas which were enforced by the circuit court and the Commission appealed. The court found no implied authority to subpoena in the American Arbitration Association (AAA) rules which stated that an arbitrator may subpoena witnesses and documents if authorized by law. Because the parties' CBA is exempt from the Federal Arbitration Act and several other arbitration statutes, their language authorizing subpoena authority is inapplicable. The court concluded that subpoena authority is not necessary for a fair hearing and that absent expressed language, it would not find such authority present.
[Full Decision On Westlaw: 1998 WL 696019]
Inability To Speak English Does Not Constitute A Lack Of Good Faith In Arbitration Proceeding
State Farm Insurance Co. v. Kazakova (Ill.App. 10/14/98)
Defendant, Stella Kazakova, appealed from the orders of the circuit court
finding: (1) that she did not participate in good faith and in a
meaningful manner at the mandatory-arbitration hearing and that she
violated the notice to appear by not appearing with a foreign-language
interpreter, (2) sanctioning her by debarring her from rejecting the
arbitration award in favor of plaintiff, State Farm Insurance Company, as
subrogee, and (3) denying her motion to vacate the sanction. The Court of
Appeals reversed, finding that she was not in violation of applicable
Supreme Court Rules governing arbitration in part because she appeared and
did not deliberately disregard the rules of the court.
[Full Decision On Westlaw: 1998 WL 718212]
Arbitrator Denied Party Review of Duplicate Evidence After Evidence Was Misplaced
Circle Industries v. Parke Construction Group, Inc. (E.D.N.Y. 10/8/98)
Circle Industries and Parke Construction entered into a joint venture for
Parke to build a structure for Circle in Atlanta, Georgia. A dispute
between the parties was submitted to arbitration. The arbitrator
conducted five days of hearings. Some of the evidence was misplaced by
the arbitrator while he was reviewing the case and preparing his decision.
He requested duplicates from both sides and was provided with them. The
arbitrator then issued a ruling in favor of Parke. Circle brought this
action to vacate the award on the grounds that the arbitrator had violated
rules 29, 31 and 32 of the Federal Arbitration Act by not allowing Circle
to review the duplicate evidence from Parke, and refusing to hear material
evidence. The court stated that Circle had failed to meet their burden of
proof by showing that they were "denied a fundamentally fair hearing and
consequentially suffered prejudice." The court noted that Circle had
already reviewed the evidence presented by Parke, therefore no prejudice
occurred. Further, the arbitrator had not refused to hear material
evidence because Circle had ample time to present evidence at the hearing
and in post hearing briefs. Therefore the court dismissed Circle's
petition to vacate the arbitration award.
[Full Decision On Westlaw: 1998 WL 713305]
Mediation Agreement Precluded Indemnification Action
Hurst v. American Racing Equipment, Inc. (Tex.App. 10/16/98)
American Racing Equipment (ARE) is a manufacturer of automobile wheels. Longview Wheel and Performance (LWP) bought the wheels from ARE and sold them to Hurst. LeTourneau bought the wheels from Hurst. While LeTourneau was operating his van all the lug bolts sheared off resulting in an accident. LeTourneau and Hurst entered into a mediation agreement with LeTourneau to settle all of LeTourneau's product liability claims against Hurst. Hurst then sued ARE and LWP to indemnify him against LeTourneau's claims. ARE and LWP sought and were awarded summary judgment because they had already settled through mediation the products liability claims and there was no judicial finding of liability on the part of ARE or LWP on which Hurst could base a claim of indemnity. The court found that the mediation agreement between Hurst and LeTourneau only applied to products liability claims, therefore ARE and LWP would not have to indemnify Hurst for LeTourneau's negligence claims. The court then affirmed the trial court's judgment denying Hurst recovery for indemnification, but severed the separate issue of attorney's fees and costs for further proceedings. [Full Decision On Westlaw: 1998 WL 720012]
Anouncement of ADR Cyberweek
November 9-13, 1998
We invite you to join us in a five-day online conference about disputes and dispute resolution in the online environment. During this weeklong event, called ADR Cyberweek, you will be able to participate on the World Wide Web in discussions, mini-courses, software demonstrations, and a variety of hand-on activities that have been developed to assist in settling disputes in cyberspace.
Cyberweek is free. Information about how to participate and who is sponsoring it is available at http://www.umass.edu/cyber
If you have encountered conflict online or if you are involved with the field of dispute resolution, we hope that you will join us. If you happen to be involved in a dispute, you will be able to take advantage of a new resource for settling disputes that will be announced during Cyberweek.
If you happen to know others who might be interested in this event, plese forward this
announcement to them. ADR Cyberweek is being coordinated by the Center for Information Technology and Dispute
Resolution at the University of Massachusetts at Amherst
"Attorney General Janet Reno today called together more than 100
representatives from all major federal agencies to urge them to adopt
programs to settle disputes in a cheaper, quicker and more friendly
manner.
'We should resolve disputes with our citizens with maximum respect and
minimum adversity,' said Reno. 'These programs will help us do that.'
The programs promoted by the Attorney General involve the use of
mediators, and other so-called neutrals who would be used by parties to
help them negotiate settlements of their disputes with the government.
While speaking to the Interagency Working Group on Alternative Dispute
Resolution, the Attorney General pointed to the commitment of several
agencies, notably the Postal Service, to provide such mediation services
for all employees who have made discrimination complaints.
This effort to promote government-wide use of mediation and other dispute
resolution programs was initiated by President Clinton who asked the
Attorney General in May to lead the effort to install such programs in
every federal agency.
The Attorney General observed that the growing number of disputes,
especially those brought by federal employees claiming discrimination, is
thwarting the ability of many agencies to operate effectively. 'In some
circumstances, such conflict can result in wasteful, unproductive disputes
that divert us from our primary mission, and rob us of the time and
resources that we need to do the people's business,' said Reno.
To assist her in this effort, the Attorney General has mobilized a team of
senior officials, and dispute resolution experts from agencies throughout
the federal government to provide assistance in the creation and operation
of these programs. Within one year, every federal agency is expected to
establish at least one new program to resolve conflicts more efficiently.
The Attorney General expects these programs to save taxpayers millions of
dollars in coming years."
CADRE is funded by the Office of Special Education Programs at the United
States Department of Education as the National Center on Dispute Resolution.
CADRE will utilize advanced communications technology and other strategies to
deliver high quality information and technical assistance to state departments
of education, parent training and information centers and other interested
users on techniques for preventing and resolving disagreements related to the
Individuals With Disabilities Education Act.
CADRE core partners include Direction Service, Mediation Information and
Resource Center (MIRC), National Association of State Directors of Special
Education (NASDSE), the Technical Assistance Alliance for Parent Centers at
PACER, and the National Information Center for Children and Youth with
Disabilities (NICHCY).
Marshall Peter, MS, Project Director The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing
editors.
Ethan Katsh, Co-Director, Center for Information Technology and Dispute
Resolution
email:katsh@legal.umass.edu
Phone: 413.545.5879.
Janet Reno Advocates ADR In Governmental Disputes
Senate Passes Dispute Resolution Act (HR 3528)
The Alternative Dispute Resolution Act of 1998, HR 3528, passed the
Senate on October 7 and the House previously on April 21. The bill is
expected to be on its way to the President. HR 3528 directs:
"[E]ach United States district court to:
Details: http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.3528.RS:.
Press Release
Announcing the Consortium For Appropriate Dispute Resolution
In Special Education (CADRE)
James C. Melamed, JD, Associate Director
Direction Service
3875 Kincaid Street
Eugene, Oregon 97405
Phone: 541 686 5060
Email:
cadre@directionservice.org
www.directionservice.org/cadre
Mediation News Archive 2005
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