Kristen Blankley, Assistant Professor at the University of Nebraska College of Law recently authored and interesting and useful article entitled Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both as Mediator and as Arbitrator in the Same Case, Baylor Law Review, Forthcoming. In her article, Professor Blankley examines the process of med-arb from a confidentiality and privilege standpoint. Here is the abstract: As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediation-arbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and, if the parties reach impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no exceptions for med-arb, parties who seek to utilize this process must execute careful waivers to avoid the possibility that any resulting arbitration award later be vacated by the courts. The article may be downloaded here (without charge) from Social Science Research Network. We welcome your comments. Technorati Tags: arbitration, ADR, law, Mediation
Continue reading...The Northern District of Texas has held that a signatory to an arbitration agreement may enjoin another signatory from pursuing litigation against a non-signatory. In Salad Bowl Franchise Corp. v. Crane, No. 3:11-CV-0034-D (N.D. Tex., March 17, 2011), Salad Bowl, a Texas corporation with its principal offices in Dallas, entered into a franchise agreement which contained an arbitration clause with New Mexico residents Mason and Henry Crane (“the Cranes”). Soon after, the Cranes opened a Salad Bowl franchise in a rented location in Albuquerque, NM. In August, 2010, the Cranes’ landlord notified the parties that the Cranes were in default on their business lease due to non-payment. The Cranes failed to bring the lease current and Salad Bowl terminated the franchise agreement. Salad Bowl initiated arbitration proceedings in Dallas before the American Arbitration Association. At the conclusion of the arbitral proceedings, the parties agreed to a draft Settlement Agreement and Mutual Release. The terms stated Salad Bowl would purchase the Cranes’ restaurant and related assets and further release the Cranes. The Settlement Agreement also contained an arbitration clause. After arbitration, Salad Bowl sent representatives to Albuquerque to prepare the transition and to execute the final Settlement Agreement. The Cranes failed to sign or return a fully executed copy of the Settlement Agreement and instead filed a lawsuit in New Mexico which alleged a number of claims related to both the Franchise and Settlement Agreements against Salad Bowl and Salad Bowl’s co-owners individually. Salad Bowl then filed a petition to compel arbitration and a motion for a preliminary injunction against the Cranes’ New Mexico lawsuit in the Northern District of Texas. The Northern District stated, Salad Bowl cites several cases that hold that a non-signatory can compel a signatory to submit to arbitration with the non-signatory . . . and one case that concludes that signatories cannot compel a non-signatory to arbitrate . . . in support of its slightly different proposition that a signatory should be able to enjoin another signatory from pursuing litigation against a non-signatory. (emphasis in original) Next, the court noted the Fifth Circuit recently held in an unpublished decision that certain non-signatories could compel a signatory to arbitration over litigation when the complaint alleged “substantially interdependent and concerted misconduct” among the non-signatories and another signatory party. The Northern District of Texas held, [T]he same rationale that enabled a non-signatory to compel a signatory to arbitrate with the non-signatories in Griffin and Grigson permits a signatory to compel another signatory to submit to arbitration against a non-signatory, so long as it is on the subject matter covered under the Agreement and the non-signatory is being sued for his acts as agent for the signatory. Since the Cranes’ New Mexico lawsuit was clearly brought against the named individuals for actions they allegedly engaged in while acting in their capacity as co-owners and representatives of Salad Bowl without distinguishing between the alleged actions of each individual or Salad Bowl, Salad Bowl demonstrated a substantial likelihood that the New Mexico lawsuit claims relied upon the terms of the agreement. According to the court, equitable estoppel was appropriate. The Northern District of Texas issued an injunction against the Cranes’ New Mexico lawsuit. Technorati Tags: arbitration, ADR, law
Continue reading...Via the ADR Prof Blog, we learned the U.S. Securities and Exchange Commission (SEC) approved a revised Discovery Guide applicable to FINRA securities arbitration customer cases on Friday. The proposed rule change was filed with the SEC on July 12, 2010 and published for comment in the Federal Register on August 3, 2010. The Commission received 55 comment letters on the proposed rule change. On February 8, 2011, the Commission received from FINRA a Response to Comments and Partial Amendment No. 1 to the proposed rule change. According to the SEC, The Commission believes that the revisions to the Discovery Guide will help reduce the number and limit the scope of disputes involving document production and other matters, thereby improving the arbitration process for the benefit of the public investors, broker-dealer firms, and associated persons who use the process. The revisions to the Discovery Guide are the result of over six years of consultation by FINRA with its constituents. The Commission also expects that further improvement of the process should be possible through the Discovery Task Force’s consideration of discovery issues as they arise. The SEC seeks to solicit comments on Amendment No. 1, “and to approve the proposed rule change, as modified by Amendment No. 1, on an accelerated basis.” Written comments should refer to File Number SR-FINRA-2010-035 and may be submitted: At the SEC’s website: http://www.sec.gov/rules/sro.shtml; Via email to: rule-comments@sec.gov; or Via regular mail (in triplicate) to: Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090. Although not yet published, comments are due within 21 days from the date the new rule appears in the Federal Register. The SEC will post all comments on its website. Meanwhile, the full text of the rule change is currently available here. Technorati Tags: ADR, law, arbitration
Continue reading...Mark your calendars! On October 21, 2011, the University of Missouri School of Law Center for the Study of Dispute Resolution will host its annual symposium in cooperation with the Chartered Institute of Arbitrators (CIArb) North American Branch, the University of Missouri International Center and the University of Missouri Transatlantic Center. The symposium, entitled Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration, will feature keynote speaker Gary Born as well as expert panelists from Canada, Austria, Switzerland and the United States. Confirmed speakers include: Keynote speaker: Gary Born – Wilmer Cutler Pickering Hale and Dorr LLP, London, United Kingdom Panelists: Professor Frédéric Bachand – McGill University, Montreal, Canada Professor Christopher R. Drahozal – University of Kansas School of Law Professor Alejandro Garro – Columbia University School of Law and Parker School of Foreign and Comparative Law Louise Reilly – Court of Arbitration for Sport, Lausanne, Switzerland Professor Marianne Roth – University of Salzburg, Austria Professor Peter B. Rutledge – University of Georgia The School of Law has put out a call for papers and proposals in connection with the conference. All papers from the 2011 symposium will be published in the Journal of Dispute Resolution. The call relates to two events that are being organized in connection with this year’s symposium: A works-in-progress conference for academics and scholarly-minded practitioners to be held on October 20, 2011, the day prior to the symposium itself (proposals due May 20, 2011); and A student writing competition with a $300 prize sponsored by the Chartered Institute of Arbitrators (CIArb) North American Branch (papers due August 15, 2011). Submissions and questions should be directed to Professor S.I. Strong at strongsi@missouri.edu. Registration will be available here. You may read Disputing‘s blog about last year’s symposium here. Technorati Tags: law, ADR, mediation, arbitration
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.