Recent Developments - Center for Dispute Resolution- Willamette University College of Law

March 28 Newsletter

Cases:
1. Arbitration: Arbitrator’s award for damages for a contractor’s violation
of a CBA by subcontracting outside labor does not violate public policy.
2. Arbitration: Court’s interlocutory order specifying manner of
arbitration does not affect party’s substantial rights.

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April 4 Newsletter

Cases:
1. Arbitration: Court gives arbitration panel discretion in deciding
discovery issues.
2. Arbitration: A mere fee-shifting provision in arbitration agreement
for Title VII claims, does not automatically render the agreement
unenforceable.
3. Mediation: Mediated settlement is unenforceable because there is no
“pending litigation.”
4. Mediation: Court erred by issuing a decree that conflicted with a
mediated settlement agreement.

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April 11 Newsletter

Cases:
1. Arbitration: An arbitrator may use sources outside the agreement to
interpret that agreement if both parties were aware of the sources.

2. Mediation: The mediated agreement did not indicate the amount each
defendant was responsible, and the court held all the defendants
jointly liable for payment to plaintiff.
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April 18 Newsletter

Cases:
1. Arbitration: Federal policy favoring arbitration preempts local law
that seeks to limit the availability of arbitration.
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April 25 Newsletter

THIS WEEK:
1. Arbitration: RICO claims may be compelled to arbitration.
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May 2 Newsletter

THIS WEEK:
1. Arbitration: Parent is without authority to bind a minor child to
arbitrate potential injury claims.
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May 26 Newsletter

THIS WEEK:
1. Arbitration: Plaintiff's failure to realize the extent of her
injuries before agreeing to arbitration constitutes a unilateral
mistake, which is insufficient grounds for rescinding an agreeement to
arbitrate.

2. Mediation: A consent judgment does not flow from the consent of the
parties, where a party to be bound participated in the mediation for
over two years and denied any interest in asserting an interest in the
disputed property, unless there is actual consent to the consent
judgment.
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May 30 Newsletter

THIS WEEK:
1. Arbitration: Arbitrator's silence on offsets in "make-whole"
provision of his award reinstating employee, without more, meant that
no offset was granted.
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June 6 Newsletter

THIS WEEK:
1. Arbitration: Court lacks jurisdiction to hear a challenge to an
interlocutory order, compelling plaintiff to arbitrate its claim,
where the order merely stays court proceedings, as opposed to
dismissing the action entirely.

2. Arbitration: Arbitration award may be vacated where the arbitration
panel orders a party to pay directly to a non-party to the
arbitration.

3. Mediation: As a matter of law, a mediated settlement does not result
in termination of civil proceedings in one party's favor.
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June 13 Newsletter

THIS WEEK:
1. Arbitration: Court will not review arbitrator's award where the
arbitrator did not disregard the terms of his employment or the scope
of his authority as expressly circumscribed by his contract.

2. Mediation: When mediation between the parties would be fruitless, the
expeditor has authority to make decisions regarding child visitation
schedules.

3. Arbitration: Former business partner seeking an order to vacate
arbitration award on ground of fraud must do so within the 30-day
limitation period expressly set forth in state statute, even though
common law is inconsistent with that statute.

4. Arbitration: Enforcement of arbitration clause in contract between
former sales representative (located in Kentucky) and employer
(located in Washington State) providing for arbitration to take place
in Washington is unenforceable because it would result in
inconvenience of forum so serious as to deprive sales representative
of his day in court.

5. Arbitration: Trust beneficiary is bound by arbitration clause, found
in agreement between the trust (signed by trustee) and bank, to
arbitrate claims against trustee for alleged breach of fiduciary
duties, negligence, and breach of contract, and trustee is also bound
even though he will lose a right of contribution from bank in
arbitration.
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June 20 Newsletter

THIS WEEK:
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Please note that, in an order to avoid being confused with other online
services offered by the College of Law, we are changing our name
to "Recent Developments in Dispute Resolution" (RDDR).
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1. Arbitration: Arbitration agreement contained in appendix to seller's
standard contract was incorporated into parties' contract via explicit
references, even though the parties never signed a final version of the
contract.

2. Mediation: Federal Magistrate did not violate confidentiality rule by
serving as both the mediator and subsequently recommending the
mediation be enforced.
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June 27 Newsletter

THIS WEEK:

1. Mediation: Court upholds probation officer’s decision that victim
offender mediation is not an appropriate sanction.

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July 4 Newsletter

THIS WEEK:

1. Mediation: Court uses doctrine of mutual mistake to temper expansive
release language of a mediated agreement.

2. Arbitration: Equitable estoppel applies to arbitrations under the
FAA.

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No Summaries are available for Week Ending July 11, 2003
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July 18 Newsletter

THIS WEEK:

1. Arbitration: Failure to respond, for 5-1/2 months, to plaintiff's correspondences
regarding an action filed in court does not constitute waiver of the
right to arbitration.

2. Arbitration: Arbitration clause located in Limited Liability Company Agreement does
not compel arbitration of disputes arising under a separate Severance
Agreement.

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July 25 Newsletter

THIS WEEK:

1. Arbitration: Court re-instates portion of arbitration award which
granted attorney's fees pursuant to California law, despite valid and
enforceable New York choice of law clause, because such error was
harmless.

2. Arbitration: Employee makes a knowing agreement to arbitrate her
claims against employer when she signs a form which, on its face,
refers to a dispute resolution benefits plan.
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Aug 1 Newsletter

THIS WEEK:

1. Arbitration: Claim, for the difference in value between the closing
balance sheet and the amount shown in the limitation of liability
provision, does not fall within the scope of issues that the parties
agreed to arbitrate where the party opposed to arbitration claims that
the liability provision is the result of mutual mistake.

2. Mediation: Court to issue supplemental settlement agreement, amending
two previous mediated settlement agreements, where previous mediated
settlement agreements failed to resolve a tax deposit dispute.
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August 15 Newsletter

THIS WEEK:

1. Mediation: Agreement to mediate employees' claims through issue
resolution process involving outside mediator constitutes agreement
to "arbitrate" covered by the Federal Arbitration Act.

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August 29 Newsletter

THIS WEEK:

1. Arbitration: Private parties have no power to alter or expand the
grounds for federal court review of an arbitral decision and any
contractual provision purporting to do so is legally unenforceable.

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September 5 Newsletter

THIS WEEK:

1. Arbitration: Court accepts motion to vacate an arbitration award
that is filed after expiration of 90-day statute of limitations where
motion is originally dismissed by reason of curable procedural
irregularity. (2nd Cir.)

2. Arbitration: Parties do not contract for heightened de novo standard
for reviewing arbitration award where the parties are sophisticated and
failed to clearly and unmistakably express an intent for the court to
review de novo. (8th Cir.)

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September 21 Newsletter

THIS WEEK:

1. Arbitration: Waiver of right to appeal an arbitration decision is valid if done knowingly
and voluntarily.
2. Compromise and Settlement: Judge cannot refuse to enforce a settlement agreement solely
because an evidentiary hearing or mini-trial may be required to resolve disputed material
facts.
3. Mediation: Although a showing that a dispute was never mediated may be sufficient grounds
for granting a continuance, a court’s failure to do so is not an abuse of discretion.
4. Arbitration: Arbitration award is invalid against a non-signatory to the arbitration
agreement unless there is an alter ego relationship between the non-signatory and a party to
the agreement.
5. Arbitration: Amended credit card agreement containing an arbitration clause held
enforceable.
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September 28 Newsletter

THIS WEEK:

1. Arbitration: Arbitrators may require foreign reinsurers to post prehearing security when
they have explicitly waived immunity from prejudgment attachment. (2nd Cir. N.Y.)

2. Mediation: In comparing the verdict to the mediation evaluation in order to find which
ruling was more favorable, only the amount as to the "particular pair of parties" is
considered.(Mich. Ct. App.)

3. Arbitration: A sophisticated commercial entity that creates an intricate web of
affiliates may shield itself from arbitration agreements to which it is not a signatory. (1st
Cir. Mass.)

4. Arbitration: Dispute regarding enforcement of labor recognition agreement held a
contractual issue to be decided in arbitration. (9th Cir.)

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October 6 Newsletter

THIS WEEK:

1. Arbitration: Broad arbitration clauses encompass unforeseeable
disputes, including those arising out of tortuous conduct. (7th Cir. (Wis.))

2. Mediation: The California statute giving the court authorization
to make custody and visitation orders implicitly allows the court to
make collateral orders, such as counseling orders, that are reasonably
related to the custody and visitation orders. (Cal. Ct. App.)

3. Arbitration:An arbitrator's decision to reinstate a fired
employee is subject to vacation on the grounds of fraud if discovered
that employee lied at the arbitration hearing. (8th Cir. (Iowa))

4. Arbitration: Borrower's claims against home mortgage company held
arbitrable. (11th Cir. (Ala.))
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October 6-12 Newsletter

1. Arbitration: Automobile glass companies bound by mandatory arbitration provisions as assignees of insureds' claims against insurers. (Minn. Ct. App.)

2. Mediation: "Mediation service fee" cannot be amended as a taxable cost under the Wisconsin statute, but "certified copies" are taxable costs under the statute. (Wis. Ct. App.)

3. Arbitration: Parties who fail to timely reject a non-mandatory change to their credit-card agreements inserting an arbitration clause must arbitrate claims brought after the amendment. (Alabama Supreme Court)

4. Arbitration: The United States Court of Appeals Ninth Circuit, sitting en banc, overruled its own earlier decision (Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998)), and joined all other circuits in holding that Title VII does not bar compulsory arbitration agreements. (9th Cir. (Cal.))

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October 12-19 Newsletter

1. Arbitration: Decision by Uniform Domain-Name Dispute-Resolution Policy Panel does not affect claim by domain-name registrant under the Anticybersquatting Consumer Protection Act. (2nd Cir.)

2. Arbitration: The Florida District Court of Appeal holds that a fee splitting clause does not render an arbitration agreement invalid per se, but requires claimant to allege and prove the fee amount would force her to relinquish any statutory remedy. (Fla. App. 1st Dist.)

3. Arbitration: Prohibitive costs imposed on a claimant will render an arbitration clause unenforceable. (Idaho)

4. Arbitration: An arbitrator's interpretation of the phrase "other paid leave" is valid if rationally derived from the collective bargaining agreement. (Pa. Commw. Oct. Ct. 9, 2003)

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October 20-26 Newsletter

THIS WEEK:

1. Arbitration: In determining the validity of an arbitration agreement, a court may disregard a choice-of-law provision when the most significant contacts relating to the dispute occur in a different state from the one named in the provision. (2nd Cir.).

2. Arbitration: Court may consider the affirmative defense of res judicata in determining the arbitrability of an issue, but a previous final judgment may not collaterally estop a party from arbitrating unless proven that the prior judgment decided the identical issue. (Maine).

3. Arbitration: Employees' claims against employer under Fair Labor Standards Act held arbitrable. (8th Cir.).

4. Arbitration: Once a judge confirms an arbitral award the judgment must be entered; although once entered, the judge does retain discretion to stay the award pending the resolution of other claims in the same case. (Ohio).

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October 27 - November 3, 2003

THIS WEEK:

1. Arbitration: A party may be "judicially estopped" from advancing an argument that runs counter to its successful argument to compel arbitration presented in prior litigation between the same parties. (Ala.)

2. Arbitration: A court must vacate an untimely arbitration award even though the challenging party agreed to extend the award deadline, if the arbitrator exceeded his authority under the contract. (Conn. App. Ct.)

3. Arbitration: Arbitration clause in new policy applies to claim of fraudulent misrepresentation absent a showing of substantial evidence that insured was fraudulently induced to convert from original policy. (Ala.)

4. Arbitration: Former subsidiary had authority to invoke arbitration against insurer under policy of parent company. (7th Cir.)

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November 3-10, 2003

THIS WEEK:

1. Arbitration: Application by a court of a "substantial effect" test to determine whether claims of fraud, mental anguish, and emotional distress involve interstate commerce under the Federal Arbitration Act constitutes error. (Ala.)

2. Mediation: Attorney fees in class action suits based on "actual efforts to benefit the class." (Cal. App. 1st Dist.)

3. Arbitration: In an action challenging an arbitration award, the amount in controversy includes the amount demanded in arbitration, provided the party is seeking to reopen the arbitration. (7th Cir.)

4. Arbitration: Banking customer's account has sufficient nexus to interstate commerce to invoke Federal Arbitration Act in arbitrating dispute. (Ala.)

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November 10-17, 2003

THIS WEEK:

1. Arbitration: An attorney does not waive the right to arbitrate by filing an action in court, when, over the attorney's objection, the client unilaterally withdraws from an agreement to arbitrate. (Md. App.)

2. Arbitration: Arbitrators exceed their authority if, when asked to clarify an award, they decide matters not before them and grant relief denied in the original award. (Tex. App.)

3. Arbitration: A court may not overturn an arbitrator's interpretation of an agreement if it is "in any rational way" derived from the language, context, or other relevant factor of that agreement. (Pa. Cmmw. Ct.)

4. Arbitration: Subcontractor, as assignee of contractor, had authority to invoke arbitration clause against co-contractor. (S.D.N.Y.)

5. Mediation: Attorney must disclose death of client if negotiating on his behalf. (Ky. App.)

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November 17-24, 2003

1. Arbitration: Courts cannot vacate arbitration awards based on their own contrary assessments of the credibility of evidence presented at arbitration. (Conn. App.)

2. Arbitration: An arbitration agreement is illusory and unenforceable if employer retains the right to change or revoke it without notice to the employee. (Md.)

3. Arbitration: Arbitrator had authority to decide arbitrability issues where arbitration rules provided "clear and unmistakable evidence" of parties' intent. (Ariz. App.)

4. Mediation: An additional motion for mediation sanctions cannot bypass Michigan court rule, that motions must be filed within twenty-eight days of judgment, merely because a lower court entitles party to provable expert witness fees. (Mich. App.)

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November 24-30, 2003

1. Arbitration: A domestic liquor distributor cannot invoke the Twenty-first Amendment to invalidate a forum selection clause contained in an international arbitration agreement; however, when a state specifically requires that its substantive law apply to distributorship transactions, a foreign choice-of-law clause is invalid. (7th Cir.)

2. Mediation: Mediation as condition precedent for attorney fee award enforceable only against moving party. (Cal. App. 1st Dist.)

3. Arbitration: An arbitrator's decision under a collective bargaining agreement may not preclude an employee from suing to enforce his statutory rights, unless the collective bargaining agreement specifically waived employee's judicial remedies. (Cal. Ct. App.)

4. Arbitration: Plaintiff is equitably estopped from asserting that nonsignatory to contract cannot invoke arbitration clause. (Ga. App.)

5. Arbitration: Arbitration clause was found unenforceable as against public policy when the contract limited remedies that were provided by a consumer protection statute. (Fla. App. 2nd Dist.)

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December 1-7, 2003

1. Arbitration: A letter from one party to another, refusing "to arbitrate at this time," does not constitute a waiver of the right to arbitrate. (6th Cir.)

2. Arbitration: Arbitrability of a claim is only a decision for the arbitrator if the parties manifested a clear and unmistakable intent to have the decision arbitrated. (Fla. App. 4th Dist.)

3. Arbitration: Issue of existence of contract containing arbitration agreement is for courts, not arbitrator, to decide. (5th Cir.)

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December 8-14, 2003

1. Arbitration: Under the FAA, an arbitrator should determine whether a general contractor's failure to hold a required state license renders the contract unenforceable. (Fla. Dist. Ct. App.)

2. Mediation: Mediation agreement upheld despite argument that representation was inadequate. (Cal. App. 1 Dist.)

3. Arbitration: An arbitrator, rather than the court, decides whether a party has waived its contractual right to arbitrate. (La.)

4. Arbitration: A party, acting pro se, waives its right to arbitration by litigating claim on the merits. (8th Cir.)

5. Arbitration: Purely intrastate commercial transactions are within the reach of Congressional enactments based upon the nationwide aggregate of such contracts. (Ala.)

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December 15-21, 2003

1. Arbitration: If a consumer is unable to pay the fees required to initiate arbitration under a mandatory arbitration agreement encompassing unwaivable statutory rights, the arbitration agreement is unenforceable. (Cal. Ct. App.)

2. Arbitration: Arbitration clause held enforceable despite contract of adhesion and unconscionable venue provision. (Mo. App.)

3. Arbitration: In court-ordered, non-binding arbitration, when a party requests a trial de novo on a discrete claim, the trial will be held only with respect to those parties and that claim. (Fla. App. 2 Dist.)

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December 29, 2003 - January 4, 2004

1. Arbitration: Under the FAA, parties may insert a choice of law clause
into their agreements and an arbitrator should apply that state’s law so
long as it has a substantial relationship to the parties and it is not
contrary to any fundamental policy of a state with a materially greater
interest. (4th Cir.)

2. Arbitration: If the union has exclusive rights to invoke arbitration
under the terms of a collective bargaining agreement, an affected employee
lacks standing to petition the court to vacate an arbitration award.
(Ohio)

3. Arbitration: Claim of fraudulent inducement in operating agreement is
for arbitrator, not courts to decide. (La. App.)

4. Arbitration: When parties agree to arbitrate according to the rules of
the AAA; those rules, and not state rules of civil procedure apply to
service of process. (S.C. App.)

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Updated by Rosalie M. Schele
Willamette University College of Law