Mark your calendars! The Center for Public Policy Dispute Resolution at the University of Texas School of Law presents its 2nd Annual Summer Skills Enrichment Institute. when: July 28-30, 2010 what: Innovations in Collaboration and Conflict Resolution where: Four Seasons Hotel, Austin, TX Find out more here.
Continue reading...In Blaustein v. Huete, No. 09-31078 (5th Cir. June 18, 2010), Burt Huete (“Huete”) along with Richard and Gail Blaustein, formed Special Projects Limited, L.L.C. (“SPL”) in connection with an application for a provisional patent for a wireless tracking device they had invented. SPL hired the law firm Maier & Maier (“Maier”) to serve as patent counsel. Their written fee agreement contained an arbitration clause and listed SPL as the client, with Huete and Blaustein serving as signatories for SPL. Soon after, Huete hired separate counsel and sued the Blausteins in state court, and the Blausteins sued Huete in federal court. Huete alleged that the Blausteins and Maier conspired to let the provisional patent lapse and failed to list him as an inventor on a subsequent patent application. The suits were consolidated in federal court and added Maier as a defendant. Maier moved to dismiss Huete’s claims and the district court found that Huete was a party to the fee agreement between Maier and SPL. Therefore, the court granted Maier’s motion to compel arbitration pursuant to the agreement’s arbitration clause. Huete appealed. The Fifth Circuit, after an “examination for the ‘four corners of the agreement’ ” reasoned that Huete is not a signatory to the arbitration clause. The court began its analysis by saying that “there is a presumption favoring liberal construction of arbitral clauses.” However, the court noted that the agreement stated: “[t]he Client and Maier & Maier PLLC jointly agree that any dispute, controversy, or claim between us arising out of or relating in any way to this engagement shall be resolved through binding arbitration . . . .” The court concluded that Huete signed the agreement as “the Client,” representing SPL and this was not enough to bind him individually. In reversing the district court dismissal, the Fifth Circuit did not foreclose the “possibility that Huete [could] be held to the arbitration agreement as a non-party beneficiary.” Technorati Tags: ADR, law, arbitration
Continue reading...By Kent B. Scott and Cody W. Wilson How Do We Get Started? There are many things for counsel and the client to do prior to mediating. A key task is to prepare the client to participate in the mediation. This is essential to a successful mediation outcome, because unlike arbitration and litigation, in which counsel for the parties do most if not all of the talking, mediation involves client participation. However, some clients feel more comfortable than others in representing its interests. Other tasks include determining whether there is any reason not to hold a joint session, identifying the documents and information to be exchanged, who should attend the mediation on behalf of the client, whether one or more experts will be needed, who the ultimate decision makers will be who must attend the mediation on the client’s behalf because without them the dispute cannot be settled. Preparing the client for mediation Clients need to know what to expect at the mediation and how to conduct themselves. They need to know that mediation is less adversarial than other processes, and they should be prepared to be civil and even pleasant to the adversary during joint sessions and leave their anger at the office. Venting can take place in private sessions with the mediator. Prior to mediation the client and counsel should identify the strengths and weaknesses of each side’s case. Some counsel fear that by helping the client see weaknesses in its own case, they will be perceived to be less than a zealous advocate. So some attorneys leave this task to the mediator. But a client who has a realistic view of the case when he or she walks in the door is in a position to reach a settlement much sooner. Since the mediator will try to learn what each side would desire as a settlement and what needs and interests a settlement would have to satisfy, the client should try to identify these items prior to the mediation. This will help the mediator and the client develop proposed options for settlement. Discussions concerning information to be revealed The client and counsel discuss the information and documents to be exchanged with the adversary and what will be revealed in the client’s mediation statement. A mediation statement presents a party’s view of the facts and the applicable law. Whether the parties’ mediation statements will be given only to the mediator or exchanged by the parties will be decided before the mediation by counsel for the parties and the mediator. Mediators usually will ask the parties to prepare confidential mediation statements to be viewed only by the mediator. Where appropriate, the parties can agree to exchange their mediation statements with each other. The mediator may ask the parties’ attorneys to prepare confidential summaries of the strengths and weaknesses of each side’s case and their objectives for the mediation. Counsel and the client should discuss how much confidential information to initially disclose to this statement, as well as in the private caucus. The client’s views on this could change during the mediation as the client develops trust in the mediator. The mediator will determine how far in advance of the mediation the mediation statement and any confidential summaries should be submitted. These documents ultimately will educate the mediator so that he or she can engage in “reality testing” and help the parties assess the offers and counteroffers that will be transmitted by the mediator during the mediation. Decisions concerning mediator selection One of the most important decisions to be made in mediation is deciding who should be the mediator. Counsel and client should discuss the qualifications desired in the mediator. This can include mediation skills as well as subject matter expertise in the area of the dispute. Counsel should explain the difference between an evaluative and facilitative mediator so the client can determine what kind of mediator it would like. When preparing the client for mediation, it is not necessary for the client to know what its final offer or demand would be. Indeed it is better to be flexible and not have reached this point. However, the client should be made aware of the alternatives if the mediation does not result in a complete settlement so that when the mediation actually takes place, the client can weigh those alternatives, especially if the parties end up in an impasse situation. Part VII of this series will discuss dealing with the mediator and the opposing party. Stay tuned. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.
Continue reading...The US. Supreme Court decided today the high-stakes software patent case Bilski v. Kappos, No. 08-964, June 28, 2010, affirming the Federal Circuit’s judgment. (find our previous post here) In Bilski, the Federal Circuit had rejected patent claims involving a method of hedging risks in commodities trading. The questions decided by the Court were: (1) whether the Federal Circuit erred by creating the so-called “machine or transformation” test, which requires a process to be tied to a particular machine or apparatus, or transform an article into a different state or thing, in order to be patentable subject matter; and (2) whether the machine or transformation test contradicts Congressional intent (pursuant to 35 U.S.C. 273) to allow for business methods to be patented. The Court held that business methods are eligible subject matter under the Patent Act but declined to accept the Federal Circuit’s machine-transformation test as the exclusive test for the Section 101 determination. Following are excerpts from the majority opinion: Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr. And nothing in today’s opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357. It may be that the Court of Appeals thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text. To read the opinion, click here. Technorati Tags: arbitration, ADR, law
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.