The historic Tour de France began on Saturday with perhaps the most attention on doping in the event’s history. Currently, three-time champion Alberto Contador still awaits judgment from the Court of Arbitration for Sports (CAS) on an appeal from a failed drug test last year. It is expected, then, that the race will start without a judgment yet to be had, thereby shrouding the whole race in a mess of doping controversy and international arbitration frustration. Although Contador was exonerated earlier, both the International Cycling Union (UCI) and World Anti-Doping Agency (WADA) appealed. The CAS will not be making its final decision until August, which could lead to the stripping of two of Contador’s titles. The clamor over Contador is only compounded by a story that ran on CBS’s 60 Minutes earlier in the year, where it was at the very least strongly suggested that Lance Armstrong, the face of the sport, engaged in some form of doping during his streak of seven victories. Contador might have an easier go-around in this year’s Tour, yet he still faces challenges unlike other cyclists. Last year’s third-place finisher will not be competing this year, though there always seems to be a fresh crop of athletes rearing to take the spot at the top of the podium. At the same time, Contador deals with intense media scrutiny and boos or hisses from the crowd not experienced by his fellow riders. Still, Contador is the favorite in this year’s Tour de France. Whether he emerges with four victories under his belt, three after a loss, or maybe even a smaller number, will largely depend on the international arbitration decisions of the CAS. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.
Continue reading...The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status. Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status. Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status. Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status. National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status. Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status. Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status. FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status. Patent Reform Act of 2011 (a.k.a. America Invents Act). A patent holder with an invention in dispute can use arbitration to settle. S.23; Status. Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status. U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status. Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure on such mortgages. H.R. 1131; Status. Preserving Homes and Communities Act of 2011. Directs the Secretary of HUD to: (1) establish a grant program to make competitive grants to state and local governments to establish mediation programs that assist mortgagors facing foreclosure, and (2) develop and implement a plan to monitor conditions and trends in home ownership and the mortgage industry and the effectiveness of public and private efforts to reduce mortgage defaults and foreclosures. S.489; Status. H.R.1477; Status. Restoring Democracy in the Workplace Act. Declares that a specified rule prescribed by the National Mediation Board relating to representation election procedures shall have no force or effect. H.R. 548; Status. Community Access Preservation Act (CAP). Amends the Communications Act of 1934. Sets forth provisions regarding: (1) LGS or state enforcement, (2) nonbinding mediation and court proceedings concerning disputed support amounts, and (3) prerequisites for an LGS to impose additional PEG use requirements. H.R.1746; Status. Department of Peace Act 2011. Establishes a Department of Peace. Sets forth the mission of the Department, including: (1) cultivation of peace as a national policy objective; and (2) development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful conflict resolution, and structured conflict mediation. H.R.808; Status. Fair Arbitration Act of 2011. Amends the Federal Arbitration Act to establish certain procedures for arbitration clauses in contracts: the arbitration clause should have a printed heading in bold, capital letters entitled `arbitration clause’, which heading shall be printed in letters not smaller than 1/2 inch in height; explicitly state whether participation within the arbitration program is mandatory or optional; and identify a source that a consumer or employee can contact for additional information regarding costs and procedures. S.1186; Status. Medical Liability Procedural Reform Act of 2011. Provides grants to states for development, implementation, and evaluation of health care tribunals. H.R.314; Status. Empowering Patients First Act. Repeals the Patient Protection and Affordable Care Act and related health-care provisions and enacts in its place incentives to encourage health insurance coverage. The Act would limit recovery of attorneys’ contingency fees for representing claimants whether the recovery is by judgement, settlement, mediation, arbitration, or other form of alternative dispute resolution. H.R.105; Status. Foreclosure Prevention and Sound Mortgage Servicing Act of 2011. Prohibits a mortgagee from requiring a borrower, as a condition of loss mitigation activities, to: (1) waive or limit rights to certain legal actions against the mortgagee or servicer as a condition of accepting an offer of any loss mitigation activities, or (2) agree to arbitration as a condition of receiving […]
Continue reading...On July 8, 2011, the jury in the US District Court for the Southern District of Texas reached its verdict in the case of Jamie Leigh Jones v Halliburton Co. Charles Botz did not rape Jamie Leigh Jones on or around July 27, 2005; KBR did not commit fraud against Jamie Leigh Jones by inducing her to enter into the employment contract.
Continue reading...By Brett Goodman The background rule for enforceability of mediated settlement agreements, as described in the Texas ADR Act, provides that the settlement agreement is enforceable as any other contract, and the court may incorporate the terms of the settlement agreement into the court’s final decree. See Tex. Civ. Prac. & Rem. Code Ann. § 154.071. Although the settlement agreement arises from the suit, enforcement of a mediation agreement, even if reached through court-ordered mediation, must be determined in a breach-of-contract cause of action under normal rules of pleading and evidence. See Cadle Co. v. Castle, 913 S.W.2d 627 (Tex. App. – Dallas 1995, writ denied). Thus, any mediated settlement is enforceable as a contract. See Hardman v. Dault, 2 S.W.2d 378, 380 (Tex. App. – San Antonio 1999, no pet.) (citing C.P. & R.C. § 154.071(a)). A wrinkle is added in to this provision of the Texas ADR Act when reconciling with Rule 11 of the Texas Rules of Civil Procedure, which states, “Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex. R. Civ. P. 11. Though Rule 11 has antiquated roots in avoiding litigation, the recent proliferation of mediation has created a conflict between a largely unchanged rule from over a century ago being applied to a relatively new practice. See Kennedy v. Hyde, 682 S.W.2d 525, 526 (Tex. 1984). In Kennedy, the court made a first order determination that settlement agreements must comply with Rule 11 regardless of Rule 11 originating from before 1900. Id. at 530. Eleven years after the Kennedy decision, however, the Supreme Court of Texas was able to finagle a way around the constraints of the Kennedy court through semantics concerning the filing requirement of Rule 11. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). The agreement in Padilla had been signed as required by Rule 11, but the Court did not find important when the agreement was filed, thereby minimizing the strictness of Rule 11. See id. Following Padilla, then, mediation settlement agreements should comply with Rule 11’s three requirements to be valid, but there is wiggle room within the application. See id. With this background on Rule 11, some case law can be considered. Recent case law shows instances of both upholding and striking down mediated settlement agreements for various reasons. In Castano, the San Felipe Company ran water through a ditch on Castano’s land, leading to a cause of action for trespass as well as claims for emotional distress. See Castano v. San Felipe Agric., Mfg., & Irr. Co., 147 S.W.3d 444, 446 (Tex. App. – San Antonio 2004, no pet.). After San Felipe altered the mediation agreement and Castano did not agree, San Felipe filed and was granted a summary judgment motion against Castano for breaching the settlement agreement. Id.The higher court dismissed the issue fairly quickly; noting that mediated settlement agreements are to be enforced as contracts, the court found there was a valid agreement signed by both sides and so Castano was bound by said agreement. Id. at 451. Mediated settlement agreements are not the final word of authority and can be superseded by other means. See Pickell v. Guar. Nat. Life Ins. Co., 917 S.W.2d 439, 440 (Tex. App.–Hous. [14th Dist.] 1996, no writ). Guaranty Life Insurance Company filed suit against Pickell, an insurance salesman, for tortuous interference stemming from alleged purposeful misstatements Pickell made to policy holders. Id. Although a mediated settlement agreement seemed to have been reached, certain documents were not returned to Guaranty, leading to a default judgment being entered against Pickell at trial when he did not appear at trial relying on the apparent settlement. Id. Noting its sympathy toward Pickell’s plight, the court still determined that Pickell was required to be at trial in spite of the perceived mediation agreement. Id. at 443. “Although most judges probably would have inquired further and attempted to contact Mr. Pickell to find out why he was not at the pre-trial conference or trial, or to inquire further about the settlement,” the court admitted, “a trial court is not required to take such steps when a litigant fails to appear for the pre-trial conference or trial.”Id. A recent mass tort litigation case is similar to Pickell, in that, although an agreement pursuant to Rule 11 seemed to be reached, it did not designate a specific dollar amount, meaning that defendants were not bound to any mediation settlement agreement. See Authorlee v. Tuboscope Vetco Intern., Inc., 274 S.W.3d 111, 121 (Tex. App. — Hous. [1st Dist.] 2008, pet. denied). Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.
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.