Expanding Access to Remedies Through E-Court Initiatives
Amy J. Schmitz, Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law, has published a timely article titled “Expanding Access to Remedies Through E-Court Initiatives.”
Pew Charitable Trusts Calls for Standardization of US Court ODR Programs
The Pew Charitable Trusts (“Pew”) has reportedly issued a call for the establishment of a national body to standardize online dispute resolution (“ODR”) procedures in civil courts across the United States.
Federal Court Sends Data Privacy Dispute to Arbitration
This article when the court stated an unconscionability claim failed because the arbitration requirement was made clear to readers of the subscriber agreement.
Where To, MeToo?
In her journal article, Professor Sternlight discusses her views on the potentially negative consequences of mandatory arbitration in the employment context as well as the waning impact of social movements such as MeToo.
SCOTUS to Consider Delegation of “Wholly Groundless” Arbitrability Claims
The high court's opinion will resolve a split among the Circuit Courts of Appeal regarding whether a court may decide the issue of arbitrability in situations where the arbitration claim is groundless.
SCOTX Holds Payday Lender Did Not Waive Right to Arbitration
The Supreme Court of Texas has ruled that a payday lender did not waive its right to compel arbitration against the company’s defaulting customers.
SCOTUS to Hear Oral Argument Over Constitutionality of Review of Patents
Next week, the nation’s highest court will consider whether the controversial process that is currently used by the United States Patent and Trademark Office to analyze the validity of and cancel existing patents is constitutional.
Legal Battle Continues After Arbitrator Upholds Suspension of Dallas Cowboys Running Back
the NFL filed a motion to confirm the arbitrator’s decision in the Southern District of New York – the same court that upheld Tom Brady’s suspension following the so-called “Deflategate” controversy.
Online Arbitration as a Remedy for Crowdfunding Fraud
In his journal article, Professor Bradford discusses creating a simplified online arbitration remedy to be used in situations where crowdfunding fraud has occurred.
Misclassification in the Sharing Economy: It’s the Arbitration Agreements
Elizabeth Chika Tippett, Associate Professor and Conflict & Dispute Resolution Program Faculty Co-Director at the University of Oregon School of Law, and Bridget Schaaff, University of Oregon School of Law, have published “Misclassification in the Sharing Economy: It’s the Arbitration Agreements.”
When the Empty ADR Chair Is Occupied by a Litigation Funder
Discussion about the ethical implications of having a litigation funder support a party in arbitration or mediation.
DOJ Flips on Class Waivers Issue
Although the DOJ brief is unlikely to have much impact on the high court’s ultimate decision in the consolidated cases, the Department’s abrupt U-turn in a pending Supreme Court case is both interesting and unusual.
The Agreement to Arbitrate and the ‘Applicable Law’
Alan S. Rau, Mark G. and Judy G. Yudof Chair of Law at the University of Texas at Austin School of Law, has published “The Agreement to Arbitrate and the ‘Applicable Law’.”
Exploring the Interplay between Mediation, Evaluation, and Arbitration in Commercial Cases
As mediation and other settlement-oriented intervention strategies have come into broader use in commercial dispute resolution, different views have emerged regarding the nature and purpose of some of these processes as a result of both individual choice and cultural or systemic factors.
Revised ICC International Court of Arbitration Rules Become Effective March 1st
On March 1st, the International Court of Arbitration of the International Chamber of Commerce’s (“ICC”) newly revised rules designed to enhance efficiency and transparency will become effective.
Hawaii Bill Would Require Mediation Prior to Sale of Kuleana Land
A member of the Hawaii State House of Representatives has reportedly introduced a bill that would require mediation for certain real estate transactions occurring in the state.
SCOTX Refuses to Reconsider Patent Company’s Request to Vacate Arbitrator’s $3 Million Legal Fees Award
The Supreme Court of Texas has once again declined to consider a company’s request to vacate an arbitrator’s award in a legal fees dispute.
Empirical Findings on International Arbitration: An Overview
In his book chapter entitled “Empirical Findings on International Arbitration: An Overview,” Professor Drahozal provides a survey of qualitative empirical research and literature related to international arbitration.
Online Dispute Resolution: Stinky, Repugnant, or Drab
Professor Robert Condlin, University of Maryland Francis King Carey School of Law, has written an interesting paper entitled, “Online Dispute Resolution: Stinky, Repugnant, or Drab.”
Texas Insurer Abandons Mandatory Mediation-Arbitration Endorsement Proposal
The Texas Farm Bureau has reportedly abandoned a proposal that would have allowed insureds to relinquish their right to sue the company in the event of a claim dispute in exchange for a lower homeowners’ policy premium.
Federally Funded Nursing Homes No Longer Allowed to Require Residents to Sign Binding Arbitration Agreements
Yesterday, the Department of Health and Human Services’ Centers for Medicare and Medicaid Services published a regulation that bans federally funded long-term care facilities such as nursing homes from using pre-dispute binding arbitration agreements.
No Sheriff in Town: Governance for the ODR Field
Online Dispute Resolution (ODR), the practice of resolving disputes via the Internet or digital applications, has been developing since the mid-1990s. As the field has grown and gained traction, it has increasingly received attention from professional associations and industry leaders in the world of alternative dispute resolution (ADR) More recently, it has begun to receive recognition from sources outside of this field – in both the public and private sectors.
The Arbitrator Survey: Practices, Preferences and Changes on the Horizon
Ms. Sussman discusses her recently conducted survey regarding the preferences and decision-making of 401 domestic and international arbitrators.
Fifth Circuit Again Rejects NLRB’s Position on Class Action Waivers in Arbitral Agreements
The United States Court of Appeals for the Fifth Circuit has once again rejected a National Labor Relations Board’s (“NLRB”) order stating a class action waiver included in an agreement to arbitrate violates the National Labor Relations Act (NLRA).
Special Masters: A Different Answer to a Perennial Problem
Disputing is proud to announce that “Special Masters: A Different Answer to a Perennial Problem” by Merril Hirsh, James M. Rhodes, and Karl Bayer has been published in the most recent edition of the American Bar Association’s Judges’ Journal.
Are Rules Allowing Arbitral Sanctions a Mirage?
In his publication, “Are Rules Allowing Arbitral Sanctions a Mirage?,” Mr. Morrow discusses whether an arbitrator may use permissive procedures to impose sanctions beyond those currently available by judicial decree.
Dallas COA Compels Arbitration in Injured Nurse’s Lawsuit Against Former Employer
Texas’ Fifth District Court of Appeals in Dallas has ordered an injured nurse’s lawsuit filed against his former employer to arbitration.
Fifth Circuit Affirms $1.45 Million Arbitration Award in Legal Fees Dispute
Last month, the United States Court of Appeals for the Fifth Circuit upheld an arbitrator’s decision awarding a Texas-based law firm $1.45 in unpaid legal and expert witness fees.
Gateway-Schmateway: An Exchange Between George Bermann and Alan Rau
This article is the transcript of an interesting discussion between professors discussing the U.S. Law of International Arbitration drafting project.
Curbing the Runaway Arbitrator in Commercial Arbitration
Arbitration is in crisis. Under fire as an oppressive, claim-suppressing method of dispute resolution, imposed by businesses upon unsuspecting employees and consumers, arbitration is also becoming increasingly unpopular with its original designers – businesses in commercial disputes with other businesses
The Arbitration Bootstrap
Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts.
9th Circuit Botches Another Arbitration Case
One has to wonder whether the 9th Circuit is paying attention to the principles embodied in the Federal Arbitration Act (FAA) as interpreted by the Supreme Court.
Large-Scale Dispute Resolution in Jurisdictions Without Judicial Class Actions
In her journal article, Professor Strong discusses innovative developments in the context of large-scale arbitration and other alternative dispute resolution mechanisms in Ireland – a jurisdiction where class relief is not typically available through the court system.
Texas Supreme Court Will Not Review Case Where Post-Arbitration Discovery Ordered Due to Neutral’s Alleged Evident Partiality
The Supreme Court of Texas has denied a party’s request to review the Dallas Appeals Court’s decision allowing post-arbitration discovery in a case that was filed by an injured worker.
Building Trust in E-commerce Through Online Dispute Resolution
In her book chapter, Professor Amy Schmitz analyzes online dispute resolution in the context of both international and domestic business-to-consumer transactions.
High Profile San Antonio Trust Dispute Sent to Mediation
A Bexar County Probate Court Judge has reportedly asked the parties engaged in a high profile battle over a trust valued at nearly $1 billion to engage in mediation. In the case, the 88-year-old owner of the National Football League’s New Orleans Saints and the National Basketball Association’s New Orleans Pelicans, Tom Benson, and his only daughter are apparently at odds over control of the assets that were placed in trust by Benson’s late wife who sadly passed away in 1980.
COA Orders Employment Discrimination Case to Arbitration
Texas’ 13th District Court of Appeals has ordered an employment discrimination lawsuit to arbitration.
Mandatory Arbitration in Consumer Finance and Investor Contracts
Michael S. Barr, Roy F. and Jean Humphrey Proffitt Professor of Law at the University of Michigan Law School, has published “Mandatory Arbitration in Consumer Finance and Investor Contracts." In his article, Professor Barr argues that federal agencies should use their authority under the Dodd-Frank Act to restrict or eliminate the use of arbitration provisions in consumer finance and investment contracts.
Dispute Must be Arbitrated Under FINRA Despite AAA Agreement
Texas’ Fifth District Court of Appeals has ruled that a dispute between a licensed securities broker and an investment company must be arbitrated before FINRA rather than the AAA. In Morford v. Esposito Securities, LLC, No. 05-14-01223-CV (Tex. App – Dallas, September 18, 2015), a securities broker and Financial Industry National Regulatory Authority (“FINRA”) member, Esposito, provided a group of customers, Nemaha Water Services, with assistance in locating investors. In exchange for his help, Nemaha agreed to pay Esposito five percent of any funds the company received as a result. As part of the transaction, the parties signed a letter agreement which stated any future disputes would be resolved through arbitration before the American Arbitration Association (“AAA”).
Ride Sharing Arbitration Agreement is Socially Unconscionable
A California judge has reportedly declined to order a dispute between transportation network company Uber and a former driver to arbitration. In the case, a San Francisco Superior Court judge ruled that the arbitration clause between the parties was “substantively unconscionable” due to its contradictory language.
Arbitrating Antitrust Claims From Suspicion to Trust
Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust,” New York University Journal of International Law and Politics (JILP), Vol. 48, 2016, Forthcoming. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
Arbitrating Antitrust Claims: From Suspicion to Trust
Vera Korzun, Adjunct Professor at the Fordham University School of Law, has authored “Arbitrating Antitrust Claims: From Suspicion to Trust”. In her scholarly article, Professor Korzun discusses the adjudication and enforcement of domestic antitrust laws by international arbitral tribunals.
Reasoned Awards in International Commercial Arbitration
University of Missouri School of Law Professor S.I. Strong has written “Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy,” 37 Michigan Journal of International Law, 2016, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2015-18. In her publication, Professor Strong analyzes the requirement for reasoned awards in the context of international commercial arbitration.
Patent Arbitration: It Still Makes Good Sense
Peter Michaelson, Michaelson ADR Chambers, LLC, has published “Patent Arbitration: It Still Makes Good Sense,” Landslide (Journal of the ABA Section of Intellectual Property Law); July/August 2015, pp. 42-47. In his paper, Mr. Michaelson examines the future of patent arbitration following the implementation of the Leahy-Smith America Invents Act.
Missourri Declares it Unconscionable for NFL Commissioner to Arbitrate Employment Dispute
Disputing would like to invite you to check out Liz Kramer’s recent blog post entitled “Missouri Declares It Unconscionable For NFL Commissioner to Arbitrate Employment Dispute.” In her blog post, Ms. Kramer examines two significant arbitration decisions that were recently issued by the Supreme Court of Missouri.
Checkmate: Early Moves Define Negotiation
The Litigation Section of the State Bar of Texas recently published Don Philbin’s article entitled “Checkmate: Early Moves Define Negotiation Outcomes” in its newsletter. In his article, the Chair of the Texas Bar’s ADR Section discusses the insight predictive analytics can provide to negotiators.
Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses
Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services.
Use and Perception of International Commercial Mediation and Conciliation: An Empirical Study
This Article analyzes results from the first-ever large-scale international survey regarding the use and perception of international commercial mediation and conciliation by the international legal and business communities.
Fifth Circuit Rules Arbitrator Exceeded His Authority in Contract Dispute
The United States Court of Appeals for the Fifth Circuit has held that an arbitrator exceeded his authority in a contract dispute. In PoolRe Insurance Corp. v. Organizational Strategies Inc., No. 14-20433, Organizational Strategies Inc. (“OSI”) entered into a contract with Capstone Associated Services to create a new captive insurance program.
Texas Legislature Considers Measure that Would Require Out-of-Network Emergency Room Providers to Arbitrate Payment Claims
A bill seeking to establish an arbitration process designed to protect patients who are treated by an out-of-network provider during an emergency room visit from being hit with hefty medical charges is currently before the Texas Legislature. House Bill 1638, “Relating to nonpreferred provider claims under a preferred provider benefit plan related to emergency care,” was introduced by Representative Smithee and filed on February 19, 2015. An accompanying proposal was introduced in the Texas Senate on March 12th by Senator Taylor of Galveston.
Amarillo COA Overturns Order Holding Arbitration Provision is Unconscionable in Cotton Marketing Pool Dispute
Texas’ Seventh District Court of Appeals in Amarillo has overturned a Cochran County court’s order refusing to compel a cotton-marketing dispute to arbitration. In Ecom USA, Inc. v. Clark, No. 07-14-00240-CV (February 25, 2015), a group of cotton farmers agreed to deliver any crops grown in 2010 and 2011 to a marketing pool that was owned and administered by Ecom USA, Inc.
Teaching Students to Be Problem-Solvers and Dispute-Resolvers
Reports on what lawyers should know, including the MacCrate Report and Educating Lawyers, regularly list problem-solving, negotiation, and dispute resolution as skills that lawyers should have. Best Practices for Legal Education called for law schools to educate students in problem-solving and in practical wisdom, in order to solve clients’ problems effectively and responsibly.
Federal Judge Orders Sugar Land Nursing Home Visitation Dispute to Mediation
A Sugar Land nursing home dispute that arose after an elderly resident’s family was banned from a long-term care facility over a number of social media posts has reportedly been ordered to mediation. According to a complaint filed in the Southern District of Texas, Silverado Senior Living barred a woman’s two sons and daughter-in-law from the premises after the individuals refused to remove several photos and videos of their mother at the facility from their social media accounts.
To Publish, or Not to Publish Arbitral Awards: That is the Question
Einer R. Elhauge, Petrie Professor of Law at the Harvard Law School, has authored “To Publish, or Not to Publish Arbitral Awards: That is the Question…,” 81 International Journal of Arbitration, Mediation and Dispute Management, Number 1, 2015. In his research paper, Professor Elhauge examines some potential pros and cons of establishing a publication mechanism for international commercial arbitral awards.
Privatizing Mass Settlement
University of Georgia School of Law Assistant Professor Jaime Dodge has published “Privatizing Mass Settlement,” 90 Notre Dame L. Rev. 335 (2014); UGA Legal Studies Research Paper No. 2015-2. In her scholarly article, Professor Dodge examines privatized bilateral mass settlement as an alternative to both arbitration and multi-district litigation.
Fifth Circuit Reverses Course in Construction Defect Case
The Fifth Circuit Court of Appeals has reversed its prior decision affirming summary judgment in favor of an insurance company that refused to pay an arbitral award in a construction defect case. In Crownover v. Mid-Continent Casualty Co., No. 11-10166, a Texas couple, the Crownovers, initiated arbitration against the company that built their defective home, Arrow. After an arbitrator ruled in favor of the homeowners, the builder filed for bankruptcy protection. The couple next sought to recover damages from Arrow’s insurance company.
U.S. Supreme Court Asked to Review Case Where Mediator Conflict Existed
The United States Supreme Court has reportedly been asked to review a federal court’s order refusing to set aside a jury’s verdict where a court-appointed mediator failed to disclose his close personal relationship with a partner at the law firm representing several of the defendants. In CEATS Inc. v. Continental Airlines, Inc., et al., No. 14-681, CEATS filed a patent infringement lawsuit in the Eastern District of Texas against Continental Airlines, Ticketmaster, and a number of other corporations over the companies’ alleged use of CEATS’s technology in certain seat selection software.
The Year of Arbitrator Authority
Liz Kramer at Arbitration Nation has compiled a thorough year in review of arbitration cases decided on a variety of topics in 2014. Her blog post, entitled “2014: The Year of Arbitrator Authority,” addresses state and federal court decisions on validity, formation, preemption, vacatur, and, of course, arbitrator authority.
Non-Judicial Means of Collective Redress in Europe
S.I. Strong, Associate Professor at the University of Missouri School of Law, has published a book chapter entitled Non-Judicial Means of Collective Redress in Europe in Collective Redress in Europe (Oxford University Press, anticipated 2015); University of Missouri School of Law Legal Studies Research Paper No. 2014-29. In her book chapter, Professor Strong analyzes large-scale arbitration and other non-judicial avenues for collective redress in Europe.
Arbitration Trends in 2014
A survey recently conducted by Today’s General Counsel asked in-house attorneys about their thoughts on arbitration. The results published in Arbitration Trends 2014 indicate that nearly half of lawyers surveyed normally choose arbitration over traditional litigation because it is required by contract. In addition, 38 percent stated they select arbitration because it is less expensive than litigating a case and the process preserves confidentiality.
Use and Perception of International Commercial Mediation and Conciliation
The project was constructed with two goals in mind. First, the study attempted to discover and describe current behaviors and attitudes relating to international commercial mediation and conciliation so as to set a benchmark for further analysis in this field. Second, the research attempted to determine whether the legal and business communities thought an international instrument in this area of law would be useful and if so, what shape they believed that document should take.
Arbitration in Evolution
The arbitration survey conducted by Professor Tom Stipanowich and the Straus Institute revealed current practices and trends in arbitration. This article specifically examines the demographics of the arbitrators and questions whether these demographics are the best for the business.
Reflections on the State and Future of Commercial Arbitration
What may be most striking about these developments is that, until fairly recently, cost- and time-saving were often regarded as among the leading potential benefits of arbitration and a primary basis for distinguishing arbitration as an alternative to litigation. The growing prominence of these elements as perceived negatives of arbitration is therefore particularly troubling.
E.D. Texas Orders Guardrail Safety Case to Mediation Following $175 Million Jury Award
Interestingly, Judge Gilstrap stated representatives for the nation’s Department of Justice and the FHA may be involved in the mediation process due to the unique nature of the case.
Federal Judge Orders Google Wallet Consumer Privacy Dispute to Mediation
A federal judge in California has reportedly ordered a consumer privacy dispute that was filed against technology giant Google to mediation.
Amarillo COA Holds Arbitration is Required in Construction Fee Dispute
In January 2013, several of the subcontractors (“Scottco”) filed a lawsuit against Journeyman to recover payment for services rendered pursuant to their respective subcontracting agreements. Journeyman responded by filing a motion to abate the court proceedings and compel arbitration. After the district court denied Journeyman’s motion, the general contractor filed an interlocutory appeal with the Amarillo appeals court.
Dallas COA Affirms Arbitral Award Despite Evident Partiality Claims
The Fifth District Court of Appeals of Texas in Dallas has affirmed a trial court’s order confirming an arbitral award in a dispute between a residential builder and several homeowners. In Meritage Homes of Texas, L.L.C. v. Ruan, No. 05-13-00831-CV (Tex. App. – Dallas, September 16, 2014) a group of individuals who bought newly built homes from Meritage allegedly learned that their houses were smaller than the square footage that was represented to them prior to purchase.
New AAA Consumer Arbitration Rules are Now in Effect
On September 1st, new American Arbitration Association (AAA) Consumer Arbitration Rules went into effect. The 55 new rules reportedly replaced the eight Consumer-Related Disputes Supplementary Procedures that previously applied to consumer arbitrations filed with the organization. The new rules apply to all arbitral cases filed after September 1, 2014
Texas Supreme Court Agrees to Decide Whether Construction Dispute Should be Arbitrated
The Supreme Court of Texas has agreed to review whether an arbitration clause applies to a construction dispute between a developer, a builder, an architectural firm, and others. In G.T. Leach Builders, L.L.C. v. Sapphire VP, LP, No. 13-0497, a condominium complex was destroyed by a hurricane while still under construction. Prior to the hurricane, the builder, G.T. Leach, apparently allowed its insurance coverage to lapse. As a result, the builder lacked sufficient funds to rebuild the condominium project or make the owner whole again. In response, the developer, Sapphire, filed a lawsuit for breach of contract and negligence in Cameron County against the builder.
Mediator Ethical Breaches: Implications for Public Policy
Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services.
U.S. Supreme Court Asked to Consider Scope of Nursing Home Arbitration Agreements
The United States Supreme Court was recently asked to consider whether an arbitration agreement precludes a wrongful death claim in a nursing home dispute. In Pisano v. Extendicare, the heirs of a man who passed away in 2011 while in the care of a Pennsylvania nursing home filed a lawsuit against the facility seeking damages for his alleged personal injuries and wrongful death. When the man was initially admitted to the skilled nursing facility, however, his daughter signed an agreement to arbitrate any future disputes with the institution.
Ethics Consultations and Conflict Engagement in Health Care
In her research paper, Professor Scott explores the dichotomy between alternative dispute resolution mechanisms and health care ethics consultations.
Taming the Wild West of Arbitration Ethics
Kristen Blankley, Assistant Professor at the University of Nebraska College of Law has authored an interesting article entitled Taming the Wild West of Arbitration Ethics, Kansas Law Review, Forthcoming. In her article, Professor Blankley examines legal ethics in the arbitral forum.
Dallas COA Holds Cellular Network Technology Dispute is Subject to Arbitration
Texas’ Fifth District Court of Appeals in Dallas has affirmed a lower court’s decision stating an agreement to arbitrate existed between two cellular network technology companies. In Tecore, Inc. v. AirWalk Communications, Inc., No. 05-12-00130-CV (Dallas App. – December 4, 2013), a cellular network manufacturer, Tecore, agreed to purchase and distribute equipment manufactured by AirWalk Communications.
Highly Accurate Predictive Analytics Used to Help Settle Longshot Mediation
According to reports, Mary Brennan Stich, Vice-President and Associate General Counsel of Rackspace Hosting, recently used Picture It Settled® by Don Philbin n a case that she considered to be a longshot for settlement.
Apple & Samsung Agree to Mediation
Electronics giants Apple, Inc. and Samsung Electronics Co. have reportedly agreed to engage in mediation over the companies’ latest technology dispute. In Apple Inc. v. Samsung Electronics Co. Ltd., No. 11-1846 (N. D. California), the two smartphone manufacturers are once again at odds over patented technology related to Samsung’s Android operating system.
Financial Consumers Can Only Avoid Arbitration By Using A Credit Union
Disputing would like to invite you to check out Liz Kramer’s recent blog post entitled CFPB’s Preliminary Report: Financial Consumers Can Only Avoid Arbitration By Using A Credit Union. In her post, Ms. Kramer discusses the surprising and expected findings included in the Consumer Finance Protection Bureau’s 168-page preliminary results regarding consumer financial arbitration.
Increasing Legalism in International Commercial Arbitration
Recent years have seen an increasing amount of criticism of international commercial arbitration, primarily because of concerns about excessive legalism and the attendant increase in the amount of time and money spent on the dispute resolution process. The common assumption is that international commercial arbitration has changed, and not for the better.
The Promise of International Commercial Mediation
Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes.
The Federalization of Consumer Arbitration: Possible Solutions
Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses in contracts with consumers. Although commentators criticize the use of arbitration to resolve consumer disputes because arbitration lacks the due process protections inherent in traditional litigation, efforts to regulate or eliminate the use of arbitration in this context have failed miserably.
Nevada Supreme Court Protects Confidentiality of Foreclosure Records
Last week, the Nevada Supreme Court rejected a non-profit organization’s request to examine records created as part of the state’s Foreclosure Mediation Program. Non-profit group Civil Rights for Seniors reportedly sought the records using the Nevada Public Records Act.
Med-Arb and the Legalization of Alternative Dispute Resolution
Use of Med-Arb, a dispute resolution process incorporating both mediation and arbitration, is on the rise. Much of the recent interest in Med-Arb stems from the growing similarity between arbitration and litigation, and a resulting decline in Arbitration’s popularity. The formalization of mediation and arbitration provides incentives for combining the two and using Med-Arb to “correct” for the legalization of these ADR processes.
Consistently Inconsistent: The Need for Predictability in Awards
In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
Court Orders Local Firefighters to Arbitrate Benefits Dispute with City
Texas’ Fourth District in San Antonio has held that an arbitration provision included in a collective bargaining agreement (“CBA”) requires a local firefighter’s union to engage in arbitration over a health insurance benefits dispute.
Online Dispute Resolution (ODR): What is it, and is it the Way Forward?
This article provides a concise explanation of the notion of “dispute resolution” in cyberspace. It reviews some of the recent studies on the use of Online Dispute Resolution (ODR), especially the use of e-negotiation, e-mediation and e-arbitration, considers the issues concerning the intricacies of settling and resolving disputes in cyberspace and concludes that the idea of banishing offline dispute settlement and dispute resolution methods — in the near future — is extremely unlikely ever to come true.
The Not-So-Effective Vindication Decision
This article provides commentary on the Supreme Court’s decision relating to classwide waivers in arbitration clauses in American Express Co. v. Italian Colors Restaurant, and immediate reception of the Court’s decision by the Second Circuit Court of Appeals. In one of the most closely-watched classwide arbitration cases on the 2012-13 docket, the Supreme Court in Italian Colors Restaurant was asked whether the “effective vindication rule” required access to class arbitration in federal antitrust litigation where an individual plaintiff’s claim was too small to be litigated separately. In a 5-3 decision (with Justice Sotomayor not participating) a divided Court ? led by its conservative wing ? responded with a resounding “no.”
Court-Connected Mediation and Minorities
After years of experimentation with the use of alternative dispute mechanisms in a variety of contexts, a new era began in 1988 when Florida and Texas became the first states to adopt legislation that authorized trial judges to order civil cases to mediation. Over the past 25 years, court-connected mediation has grown exponentially.
NFL and Players Association Agree to Use a Third Party Arbitrator Following Positive HGH Tests
A number of Major League Baseball players have faced suspension in recent months over alleged Human Growth Hormone (“HGH”) use. The situation has apparently led other sports to more closely examine their own HGH policies.
Sticky Arbitration Clauses
We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. After the Supreme Court’s decision in Concepcion, commentators predicted that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided.
Fifth Circuit States Terms of Prior Agreements Were Not Incorporated Into Master Settlement Agreement
The United States Fifth Circuit Court of Appeals has held that the terms of two parties’ Merger and Cooperation Agreements were not incorporated into a Master Settlement Agreement entered into by only one of the parties. In Alford v. Kuhlman Electric Corporation, No. 11-60728, (5th Cir. May 24, 2013), BorgWarner, Inc. purchased Kuhlman Corporation (“Kuhlman”) and all the company’s subsidiaries, including Kuhlman Electric Corporation (“KEC”).
Is Adjudication a Public Good?
University of Kansas School of Law Professor Stephen J. Ware has published Is Adjudication a Public Good? ‘Overcrowded Courts’ and the Private Sector Alternative of Arbitration, 14 Cardozo J. Conflict Resol. 899 (2013). In his article, Professor Ware discusses user fees and the role arbitration may play in easing the overcrowding often found in courts across the United States.
Dispute Systems Design: A Comparative Study of India, Israel, and California
Janet Martinez, Senior Lecturer in Law and Director of the Gould Negotiation and Mediation Program at Stanford Law School, Sheila Purcell, Director and Clinical Professor of the Center for Negotiation and Dispute Resolution at the University of California Hastings College of the Law, Hagit Shaked-Gvili, and Justice Mohan Mehta, have authored a thoughtful research paper that compares alternative dispute resolution mechanisms in three very different legal systems.
Supreme Court Upholds Agreement That Bans Class Arbitration Despite Costs
Yesterday, the United States Supreme Court issued a decision in American Express Corp. v. Italian Colors Restaurant, et al., No. 12-133, (June 20, 2013). The appeal from the United States Court of Appeals for the Second Circuit addressed whether the Federal Arbitration Act (FAA) allows a court to invalidate an arbitration agreement that does not permit class arbitration of a federal law claim.
Arbitration and Access to Justice: Economic Analysis
Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others.
Concerted Action Includes Concerted Dispute Resolution
As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end.
Martha Stewart Living Ordered to Mediate Dispute With Macy’s and J.C. Penney
Mediation is in the news again. Last week, a New York judge ordered a dispute between Macy’s, Inc., J.C. Penney Co., and Martha Stewart Living to mediation. The lawsuit itself reportedly arose after New York-based Martha Stewart Living signed a contract with Plano-based J.C. Penney to open a Martha Stewart mini shop in many of the retailer’s stores.
Fifth Circuit Upholds Arbitrator’s Decision in Employment Dispute
The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct.
Article: An Empirical Analysis of Collaborative Practice
John Lande, Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law, recently published An Empirical Analysis of Collaborative Practice.