Via On Point News, we learned that Halliburton/KBR has recently filed a petition for certiorari with the U.S. Supreme Court on the case Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The issue is whether the arbitration provision in an employment contract includes the tort claim of sexual assault. The petition presents this question: Respondent Jamie Leigh Jones filed a complaint in federal district court against her employer, seeking redress of injuries she allegedly sustained from a sexual assault by another employee in overseas employer-provided housing in which she was required to reside as a condition of her employment. Jones’s employment contract required arbitration of “any and all claims that you might have against Employer related to your employment,” including “any personal injury allegedly incurred in or about a Company workplace.” A divided United States Court of Appeals for the Fifth Circuit narrowly construed the arbitration clause to exclude Jones’s claim. The court reasoned that sexual assault claims should be deemed generally excluded from such clauses. It imported into the “related to” clause a requirement that the claim was only arbitrable if “significantly” related to employment, and rejected application of the general rule that overseas employer-provided sleeping quarters are part of the workplace. The question presented is: Under the Federal Arbitration Act’s presumption of arbitrability, which requires courts to give arbitration agreements the broadest pro-arbitration construction of which they are susceptible, may a court develop rules of exclusion to narrow standard broad arbitration clauses? See Professor Marcia L. McCormick from the Workplace Prof Blog for comments about this case. (post available here) Related Posts: Employment Arbitration: Issues Implementing the ‘Franken Amendment’ (Feb. 2, 2010) U.S. Arbitration and Mediation Legislative Update (Jan. 25, 2010) Guest-Post Part II | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 7, 2010) Guest-Post Part I | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 6, 2010) 2009 Developments: Consumer and Employment Arbitration (Dec. 23, 2009) Defense Contractor Mandatory Arbitration Passes Senate (Oct. 13, 2009) Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18, 2009) Employment and Consumer Arbitration: NPR Article (June 10, 2009) Technorati Tags: ADR, law, arbitration

We thought that you might be interested to listen to the Podcast entitled “How To Work With E-Mediation and Special Masters in E-Discovery Cases” by Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog and Allison O’Neal Skinner from the Alabama-based law firm Sirote & Permutt. The ESIBytes™ Podcast of about 40 minutes is available here. (no PowerPoints, but free!) Peter and Allison will also host the TexasBarCLE Webcast “When to Use eMediation or Special Masters in eDiscovery“ on February 16, 2010 from 2-3:30pm. The Webcast is 1.5 hours and will have a good number of PowerPoint slides. (more details are here) Technorati Tags: ADR, law, mediation

The United States Court of Appeals for the Fifth Circuit held that an arbitration clause is enforceable notwithstanding that the parties had terminated their services contract. In Hall-Williams v. Law Office of Paul C. Miniclier, PLC, No. 09-30113 (5th Cir. Jan. 13, 2010), Carolyn Hall-Williams (Hall-Williams) is a former client of the Law Office of Paul C. Miniclier (Miniclier). In September 2006, Hall Williams hired Miniclier to represent her in an insurance dispute with Allstate Insurance Company (Allstate) regarding a claim for damages caused by Hurricane Katrina. The retainer contract provided for 33 1/3 % contingency fee if the case settled before suit was filed and a 40% contingency fee thereafter. The contract also provided for binding arbitration by the Louisiana State Bar Association for disputes arising under their contract. Miniclier filed a lawsuit against Allstate in August 2007. At that time, David Binegar (Binegar) and Tiffany Christian (Christian) were employed by Miniclier and worked on the Hall-Williams lawsuit against Allstate. However, on March 7, 2008 Binegar and Christian resigned and formed their own law firm. Hall-Williams hired them and terminated Miniclier as her counsel. On March 13, 2008, Allstate and Hall-Williams settled their dispute for an undisclosed amount. Miniclier insists that he was due 40% (plus costs) of the settlement and requested the matter to be submitted to arbitration. The district court denied Miniclier’s motion to compel arbitration and Miniclier now appeals. The Fifth Circuit highlighted the legal standard to grant a motion to compel arbitration: Whether there is a written arbitration agreement. The court noted that the parties do not dispute the existence of an arbitration agreement and addressed Hall-Williams claims that: The agreement is unenforceable due to the termination of Miniclier’s services. The court, citing the FAA ( “a written provision in any…contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract…, shall be valid, irrevocable, and enforceable…”) concluded that the arbitration clause is enforceable. Miniclier had waived his right to arbitrate. The court stated that “[w]aiver will be found when a party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Hall-Williams claims that Miniclier waived his right to arbitrate by: (a) Filing a motion to intervene, (b) Sending an email declining to attend the settlement conference, and (c) Failing to invoke arbitration in response to a magistrate judge’s order requiring a fee application. However, the court concluded that these events do not demonstrate Miniclier’s waiver. Whether any of the issues is referable to arbitration. The court concluded that the underlying dispute is referable to arbitration. Accordingly, the court vacated the judgment of the district court and remanded for referral to arbitration. Technorati Tags: ADR, law, arbitration

To follow up on our earlier post, here are more details about Hong Kong’s mediation initiative: Mediation in Hong Kong December 10, 2009 By Alfred Ip, Partner at OLN and CEDR Accredited Mediator From 1st January 2010, the court will require parties to civil proceedings to consider using mediation as an alternate means to settle their dispute. The court will require the parties to justify their decision in case they refuse to attempt mediation, failing which adverse costs order may be made against that party, irrespective of the outcome of the litigation. The court also put the burden on the parties’ legal representatives to advise their clients properly on mediation, as early as possible. In fact, good lawyers in dispute resolution should be in a position to advise their clients of various ways to resolve a dispute. Civil proceedings should not be the only way to resolve disputes among parties in the modern era. Mediation provides a platform for parties in dispute to discuss their issues in dispute in the presence of a trained and impartial mediator. The role of the mediator is to direct the parties to look at the future, and assist the parties in identifying their needs, in order to explore the alternatives available to the parties in resolving the disputes. Mediation trumps over court proceedings in many ways: 1. Mediation is less expensive compared with litigation, because of the time involved. 2. The process of mediation is much quicker compared with court proceedings. Mediation can take place within weeks, while court proceedings often go on for years. 3. Some of the disputes and grievances arise out of the parties’ misunderstandings. Through dialogue, parties can be in a better position to understand their respective points of view, and the parties’ ongoing relationship can be saved through clearing such misunderstandings, which is less likely to be achieved through court proceedings. 4. Any resolution made at the end of the mediation would be made by the parties themselves, instead of a third party’s decision imposing on the same. 5. As the outcome is controlled by the parties, parties can tailor their agreement according to their wishes or their situation, and achieve an outcome which may not be achievable through court proceedings. 6. Parties are less likely to be aggrieved by the outcome of the mediation, which is agreed by the parties themselves. The problem of prolonged appeal process would not arise. 7. Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement. 8. The mediation process, and the end result of the same, is private and confidential, whereas a judgment in court proceedings is often a public record. What the parties discussed throughout the mediation process cannot be used in any court proceedings, thus the parties are at liberty to voice their standpoint freely. The Law Society of Hong Kong and the Hong Kong International Arbitration Centre both maintain a panel of mediators for the parties to choose, while the Centre for Dispute Resolution is the most influential non-profit mediation body. Technorati Tags: ADR, law, arbitration