Professor Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law, has written “Class Action Waivers in Employment Contracts: The Clash between the National Labor Relations Act and the Federal Arbitration Act,” 1 Preview of United States Supreme Court Cases 13 (Oct. 2, 2017); U of Texas Law, Public Law Research Paper No. 577.
Continue reading...Last week, the United States Department of the Treasury issued a new report that calls for easing a variety of financial market rules. The report titled “A Financial System That Creates Economic Opportunities Capital Markets” was prepared in response to Executive Order 13772, which was issued in early February.
Continue reading...The Fifth Circuit Court of Appeals has dismissed an appeal that was filed over a lower court’s order compelling arbitration due to lack of appellate jurisdiction.
Continue reading...Kristen Blankley, Associate Professor of Law at the University of Nebraska College of Law, has published “Agreeing to Collaborate in Advance?,” Ohio State Journal on Dispute Resolution, Vol. 32, No. 4, 2017.
Continue reading...In an unpublished opinion, the United States Court of Appeals for the Fifth Circuit has upheld a district court’s decision refusing to vacate an arbitration panel’s unanimous order.
Continue reading...Jacqueline M. Nolan-Haley, Professor of Law and Director of the ADR and Conflict Resolution Program at Fordham University School of Law, has written an interesting article entitled Mediation: The “New Arbitration,” 17 Harvard Negotiation Law Review, Forthcoming; Fordham Law Legal Studies Research Paper No. 1713928. In the article, Professor Nolan-Haley argues that the boundaries between mediation and arbitration have become increasingly blurred and the mediation process is currently at a crossroads. Here is the abstract: Mediation once offered disputing parties a refuge from the courts. Today it offers them a surrogate for arbitration. As lawyers become increasingly involved representing parties in mediation, the boundaries between mediation and arbitration are blurring. Lawyers generally control the mediation process, considering it the functional equivalent of a private judicial settlement conference. Legal mediation has taken on many of the features traditionally associated with arbitration – adversarial posturing by attorneys in the name of zealous advocacy, adjudication by third party neutrals, and the practice of mediator evaluation. While mediation advances toward an arbitration model, arbitration is becoming the “new litigation.” I argue that mediation’s move to the zone of arbitration practice is problematic because it clashes with mediation’s core values of self-determination and participation. This directional shift limits the spectrum of options available to disputing parties, depriving them of mediation’s benefits– the opportunity to experience individualized justice as a relief from the rigidity of the formal justice system. Mediation stands at the crossroads and it is worth reflecting on whether the time has come to pull in the reins. The article is available here (without charge) from Social Science Research Network. Disputing welcomes your thoughts and comments. Technorati Tags: ADR, law, mediation, arbitration
Continue reading...By Holly Hayes Steve Mehta wrote a thoughtful and thought-provoking post on bad faith mediation on his blog Mediation Matters. Mr. Mehta references HB 2256, a Texas law that addresses three things as bad faith: failure to participate, failure to have a full authority representative present, and failing to provide necessary information. It authorizes the mediator to report this conduct. Mr. Mehta notes, “Interestingly, I do not think a statute like this would pass muster in California due to the limitations that the courts have imposed on the mediator’s ability to disclose information from the mediation. But even if this limitation were removed by statute (as an exception to confidentiality), is it reasonable to ask the mediator to disclose this bad faith action? Isn’t the mediator going to lose all credibility with one side or the other for reporting potential conduct? Moreover, aren’t many cases subject to interpretation. For example, what if a person has authority to settle from an insurance company but is limited by the authority given to him or her by the round table committee? Is that full authority or is that failure to provide a proper person? Is a client’s obstinate refusal to see the lack of merits in its position a failure to participate in the process? And what is necessary information? Does the party have to disclose all information? All relevant information? All unfavorable information? What if the party knows of a case or a theory that would destroy its position, but the other side doesn’t? The issue of bad faith is very complex and in my humble opinion cannot be defined as easily as the Texas Legislators seem to suggest.” I agree with Mr. Mehta’s conclusion, “We should be very careful about claiming bad faith, and should be even more careful in legislating bad faith in mediation.” Technorati Tags: ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Continue reading...By Holly Hayes As discussed in my previous post, Texas House Bill 2256 was signed into law on June 19, 2009. The bill provides a procedure for mediation of “balance billing,” which is the practice of billing insured patients for amounts or balances not covered by the insurer. HB 2256 also includes the following section on “bad faith” mediation: SUBCHAPTER C. BAD FAITH MEDIATION Sec. 1467.101. BAD FAITH. (a) The following conduct constitutes bad faith mediation for purposes of this chapter: (1) failing to participate in the mediation; (2) failing to provide information the mediator believes is necessary to facilitate an agreement; or (3) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement. (b) Failure to reach an agreement is not conclusive proof of bad faith mediation. (c) A mediator shall report bad faith mediation to the commissioner or the Texas Medical Board, as appropriate, following the conclusion of the mediation. Sec. 1467.102. PENALTIES. (a) Bad faith mediation, by a party other than the enrollee, is grounds for imposition of an administrative penalty by the regulatory agency that issued a license or certificate of authority to the party who committed the violation. (b) Except for good cause shown, on a report of a mediator and appropriate proof of bad faith mediation, the regulatory agency that issued the license or certificate of authority shall impose an administrative penalty. On a related note, Victoria Pynchon conducted recently an interesting survey about “bad faith” in negotiations. Lawyers, mediators, and clients came up with a list of 35 examples of what they considered “bad faith.” Find the survey results here. We welcome your comments about this post! Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
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.