Last week, we concluded the series “Questions Clients Have about Mediation” written by Kent B. Scott and Cody W. Wilson from Babcock Scott & Babcock. In case you missed these interesting posts, following are links to all of them: What is Mediation? What are the Advantages and Disadvantages of Mediation? Would my Mediation be Confidential? Will a Settlement in Mediation be Enforceable? How do we Get the Mediator to See it Our Way? When and Where Should we Mediate? How do we Get Started? Who Should I Bring to the Mediation? Is the Mediator Like a Judge? What Should I Bring to the Mediation? What Should I Wear to the Mediation? How Long Will the Mediation Last? What Happens in Mediation? Is There a Recipe for a Successful Mediation? Feel free to add more mediation questions and answers by typing them into the “Leave a Reply” box (below) and clicking on the “Submit Comment” button.
Continue reading...As readers may already know, last week, President Barack Obama signed into law the Restoring American Financial Stability Act of 2010 (a.k.a. the “Dodd-Frank Wall Street Reform and Consumer Protection Act”). The act, among other things, would give the SEC the power to ban or limit mandatory arbitration in certain agreements. House Versions: H.R. 4173 and Status; Senate Versions: S.3217 and Status. The final version is here. Following are some provisions related to arbitration: SEC. 748. COMMODITY WHISTLEBLOWER INCENTIVES AND PROTECTION. The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by adding at the end the following: ….. ‘‘(n) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.— ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment including by a predispute arbitration agreement. ‘‘(2) PREDISPUTE ARBITRATION AGREEMENTS.—No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.’’. SEC. 919B. STUDY ON IMPROVED INVESTOR ACCESS TO INFORMATION ON INVESTMENT ADVISERS AND BROKER-DEALERS. (a) STUDY.— (1) IN GENERAL.—Not later than 6 months after the date of enactment of this Act, the Commission shall complete a study, including recommendations, of ways to improve the access of investors to registration information (including disciplinary actions, regulatory, judicial, and arbitration proceedings, and other information) about registered and previously registered investment advisers, associated persons of investment advisers, brokers and dealers and their associated persons on the existing Central Registration Depository and Investment Adviser Registration Depository systems, as well as identify additional information that should be made publicly available. SEC. 921. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION. (a) AMENDMENT TO SECURITIES EXCHANGE ACT OF 1934.—Section 15 of the Securities Exchange Act of 1934 (15 U.S.C. 78o), as amended by this title, is further amended by adding at the end the following new subsection: ‘‘(o) AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.— The Commission, by rule, may prohibit, or impose conditions or limitations on the use of, agreements that require customers or clients of any broker, dealer, or municipal securities dealer to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.’’. (b) AMENDMENT TO INVESTMENT ADVISERS ACT OF 1940.—Section 205 of the Investment Advisers Act of 1940 (15 U.S.C. 80b–5) is amended by adding at the end the following new subsection: ‘‘(f) AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.— The Commission, by rule, may prohibit, or impose conditions or limitations on the use of, agreements that require customers or clients of any investment adviser to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.’’. SEC. 922. WHISTLEBLOWER PROTECTION. (a) IN GENERAL.—The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) is amended by inserting after section 21E the following: …. ‘‘(e) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.— ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement. ‘‘(2) PREDISPUTE ARBITRATION AGREEMENTS.—No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.’’. SEC. 1028. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION. (a) STUDY AND REPORT.—The Bureau shall conduct a study of, and shall provide a report to Congress concerning, the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services. (b) FURTHER AUTHORITY.—The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers. The findings in such rule shall be consistent with the study conducted under subsection (a). (c) LIMITATION.—The authority described in subsection (b) may not be construed to prohibit or restrict a consumer from entering into a voluntary arbitration agreement with a covered person after a dispute has arisen. (d) EFFECTIVE DATE.—Notwithstanding any other provision of law, any regulation prescribed by the Bureau under subsection (b) shall apply, consistent with the terms of the regulation, to any agreement between a consumer and a covered person entered into after the end of the 180-day period beginning on the effective date of the regulation, as established by the Bureau. SEC. 1414. ADDITIONAL STANDARDS AND REQUIREMENTS. (a) IN GENERAL.—Section 129C of the Truth in Lending Act is amended by inserting after subsection (b) (as added by this title) the following new subsections: … ‘‘(e) ARBITRATION.— ‘‘(1) IN GENERAL.—No residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer may include terms which require arbitration or any other nonjudicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction. Technorati Tags: law, ADR, arbitration
Continue reading...By Peter S. Vogel Special Masters can help Judges and parties in eDiscovery disputes and also reduce the cost of litigation. Also managing eDiscovery can be improved by using eMediators who can help simply eDiscovery disputes and reduce motion practice. My recent article in the Texas Lawyer discusses some of the benefits of eMediation and Special Masters in eDiscovery. Over the past 20 years I have served as a Mediator and Special Master in computer technology and Internet lawsuits, and since there is electronic evidence in every case my experience is that Mediation conference and using Special Masters can make eDiscovery less expensive. Court Ruled that Special Master in Anna Nicole Smith Abused Trial Court’s authority A California defendant challenged Texas jurisdiction, but the Judge had not determined if the Court even had jurisdiction, as a result the trial court violated the Texas Special Master appointment Rules by authorizing the Special Master to get the defendant’s hard drive and conduct a a complete search. This was the second time that the same appellate court ruled that the trial court exceeded its authority to appoint a Special Master in this high profile case. There are always limits on the authority of what a Special Master can do in a case which should be spelled out in the Order Appointing the Special Master. Notwithstanding the outcome in this case surely we will see more cases with Special Masters since there is so much electronic evidence. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.
Continue reading...By Holly Hayes In May, we wrote about Dr. Donde Plowman’s presentation in Austin where she spoke about the opportunity leaders have to create organizations where innovation can occur. One aspect of innovation in organizations, she believes, is the presence of conflict. So often, leaders are responsible for reducing conflict, but Dr. Plowman argues, conflict often results in innovation. She states, perhaps conflict in the organization means there is life in the organization. For more on Dr. Plowman’s research on how organizations change, read here. Dr. Plowman is Professor in Business and Department Head at the University of Tennessee. On this same topic, mediate.com posted a video of David A. Hoffman talking about “conflict being good in that it brings about change. While conflict can be scary, it can also have positive outcomes.” See his video here. David is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC. A Nurses First article titled The Cost of Avoiding Conflict by Diane E. Scott, RN, MSN gives an example of how one nurse avoided conflict in the workplace: As a night shift charge nurse, I would dread working with a particular co-worker because of her negative attitude. She frequently complained about her patient assignment and rarely offered to help other nurses. I finally got to my breaking point and requested a transfer to another shift rather than work with her again. Rachel, RN. The article reviews a study called Silence Kills that demonstrates how avoiding conflict can have negative results. The study was conducted by Vital-Smarts and The American Association of Critical-Care Nurses (Maxfield, Grenny, McMillan, Patterson, & Switzler, 2005). Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. We welcome your comments on the positive results of conflict. 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.