The following bills relating to alternative dispute resolution were introduced by the 82nd Texas legislative session. The last day of the regular session will be Monday, May 30, 2011. Click on the bill number to read its text and on the status link to find the bill’s legislative history. Stay tuned to Disputing for more legislative updates! SB 1216 provides that a court “may order arbitration only if the court determines that the contract containing the agreement to arbitrate is valid and enforceable against the party seeking to avoid arbitration.” Bill status. The bill analysis explains that: Where evidence can be produced demonstrating that a party was defrauded or forced into signing an arbitration clause, the courts refuse to compel arbitration. However, due to the questionable holding of the United States Supreme Court in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404 (1967), the foregoing is not true in cases where the arbitration clause is part of a larger contract. Under the holding of Prima Paint, if A holds a gun to B’s head and forces him to sign a contract with 15 terms, one of which is an arbitration agreement, the case will be referred to the arbitrator specified in the contract. The courts treat the contract as valid even though it was obtained at gunpoint. Worse, the issue of the contract’s validity must then be tried by the arbitrator specified by the invalid agreement, who is not likely to be impartial if B was enough of a bad actor to pull a gun on A in the first place. This is an illogical inversion of the entire theoretical underpinning of arbitration. If A did not agree to the entire contract, how can he be said to have agreed to a provision contained therein? A person who is tricked or forced into signing an arbitration agreement has not voluntarily surrendered his right to appear in court. HB 911 relates to the application of foreign laws and foreign forum selection in this state. The goal of HB 911 is to require a court in Texas to uphold and apply only the laws ordained by the constitutions and laws of the United States and the State of Texas with regard to family law matters, prohibiting any other interpretation by Texas courts. Bill status. Similar to HB 1240; bill status. HB 3087 relates to payment for services provided by certain physicians and health care providers to individuals covered by managed care plans.Bill status. HB 1150 relates to an affidavit required to be filed in a cause of action against a licensed attorney. Bill status. SB 562 relates to the waiver of sovereign immunity for certain claims arising under written contracts with state agencies. Bill status. HB 3794 relates to disputes under insurance policies. Bill status. HB 3444 relates to required disclosure for appointment of certain impartial third parties. Bill status. SB 1508 relates to the right of certain debtors to elect to mediate a dispute before the debt is accelerated or a contract lien on real property is foreclosed. Bill status. SB 218 relates to procedures in certain suits affecting the parent-child relationship and the operation of the child protective services and foster care systems. The bill would affect mediated agreements in family law cases. Bill status. SB 1432 relates to the operation of the Texas Windstorm Insurance Association and to the resolution of certain disputes concerning claims made to that association. The bill would require in bold face type, a conspicuous notice concerning the mandatory arbitration of coverage and claim disputes. Bill status. Similar to HB 272; bill status. HB 1887 relates to tax administration of and procedures for property tax protests and appeals. The bill requires the district court, on motion by a party to an appeal, to enter an order requiring the parties to attend mediation and authorizes the court to enter an order requiring the parties to attend mediation on its own motion. Bill status. SB 1328 relates to optional dispute resolution methods for school districts and parents of students seeking or receiving special education services. Bill status. SB 529 relates to the regulation of motor vehicle dealers, manufacturers, and distributors. The bill would require the board of the Texas Department of Motor Vehicles, in an action brought against a manufacturer or distributor by a franchised dealer whose franchise provides for arbitration, to order the parties to submit the dispute to mediation. Bill status. Similar to HB 2293; bill status. HB 3024 relates to the Fair Access to Insurance Requirements (FAIR) Plan. The bill would required a person who holds a policy issued by the association may not serve as an arbitrator or judge in an arbitration or judicial or administrative proceeding in which the association is a party. Bill status. Bills related to Health Care: SB 8 seeks to establish a Texas Institute of Health Care Quality and Efficiency. The purpose of the bill is to improve health care quality, accountability, and cost containment in this state by encouraging health care provider collaboration, effective health care delivery models, and coordination of health care services. Bill status. Similar bill: SB 7; status. Technorati Tags: arbitration, ADR, law

Looking for a summer course in dispute resolution? Look no more! the Straus Institute for Dispute Resolution will be hosting its 24th Annual Professional Skills Program on June 23-25, 2011 in Malibu, California. Don Philbin, our friend and long time contributor to this blog and Doug Noll will be presenting “Preventing Bad Settlement Decisions and Impasse Using Brain Science, Game Theory, Animated Communication, and Micro-Interventions.” The description promises that “the fact patterns of this course will be familiar to the experienced mediator and trial advocate in negotiation: difficult people, heightened emotions, overly confident case assessments, deeply held beliefs, and barriers to rational deals.” Don is an adjunct professor at the Straus Institute, Chair of the ABA Dispute Resolution Section’s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas. This is what Vickie Pynchon has said about Don: And, it’s not inconsequential that Don is one of the nicest guys I know. If you’re going to spend a day or a week or a month with a mediator or an arbitrator, you deserve not only the brightest, most wise and best prepared arbitrator or mediator, you also deserve to have a little fun in the process because . . . you know . . . the money simply isn’t worth the unhappiness that comes when dealing with . . . . the other sort too often. Here is what Harvard lecturer on law David Hoffman says about the course: Don Philbin and Doug Noll are offering one of the most useful negotiation and mediation workshops I have seen in a long time. They begin with a thoughtful exploration of why – from the standpoint of neuroscience and evolutionary biology – our mind is trained to use shortcuts, also known as cognitive biases.. And then – with brilliant examples from such unusual sources as “Deal or No Deal” – they show how these shortcuts can fool us. This is an exceptionally novel, intelligent, and entertaining CLE program. View the brochure here. Register here. Technorati Tags: law, ADR, arbitration

The World Intellectual Property Organization (WIPO) recently announced that the number of cybersquatting cases has reached an all time high. According to the report, in 2010, trademark holders filed 2,696 cybersquatting cases relating to some 4,370 domain names with the WIPO Arbitration and Mediation Center (WIPO Center) under the Uniform Domain Name Dispute Resolution Policy (UDRP). the UDRP has become accepted as an international standard for resolving domain name disputes outside the traditional courts. Read the 2010 WIPO report here.   Technorati Tags: law, ADR, arbitration

Yesterday, the U.S. Supreme Court denied certiorari (No. 10-1213) to Trustmark Ins. Co. v. John Hancock Life Ins. Co., 631 F.3d 869 ( 7th Cir. 2011). The Seventh Circuit had held that an arbitration panel has authority to determine what a confidentiality agreement requires, when the agreement was closely related to an insurance arbitration that was already underway. The questions presented to the U.S. Supreme Court were: May a party be compelled to arbitrate a breach-of-contract claim when the contract contains no arbitration agreement (and indeed, when arbitration would make an arbitrator a judge of his own claimed breach of contract), because a different agreement between nonidentical parties contains an arbitration clause? Is it proper to overturn a preliminary injunction (restraining an arbitrator from sitting in judgment on his own alleged breach of a contract) on the ground that post-arbitration review under the Federal Arbitration Act would prevent irreparable harm? Technorati Tags: law, ADR, arbitration