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__________________________________________________________________________________ December
29, 2003 - January 4, 2004 1. Arbitration: Under the FAA, parties may insert a
choice of law clause 2. Arbitration: If the union has exclusive rights to
invoke arbitration 3. Arbitration: Claim of fraudulent inducement in operating
agreement is 4. Arbitration: When parties agree to arbitrate according
to the rules of __________________________________________________________________________________ 1. Arbitration: Nevada Supreme Court construes an ambiguous
statute to require mandatory,
2. Arbitration: Arbitration award vacated because it
conflicted with the express terms of a
3. Arbitration: Dispute resolution terms held unenforceable
where spouse was not authorized __________________________________________________________________________________ 1. Arbitration: An arbitrator does not fail to draw his award from the essence of the agreement when he concludes that an employer's unilateral action impacting the commissions of union employees involved compensation. (S.D.N.Y.) 2. Arbitration: When venue and choice of law provisions
are contained in a valid arbitration agreement, the parties must
abide by those provisions, even if a contrary state law exists.
(D. Mass.) 4. Arbitration: Arbitrator's recommended award of attorney fees adopted and upheld upon arbitrator's finding that financial disparity existed between divorcing parties. (Ariz. App. Div. 1) __________________________________________________________________________________ 1. Arbitration: An arbitration agreement granting an employer the right to unilaterally select the pool of arbitrators who will decide the outcome of an employee's statutory rights claims is so fundamentally unfair as to preclude its enforcement. (6th Cir. (Mich.)) 2. Arbitration: If an arbitration award includes attorney
fees, a trial court may not award additional attorney fees for
enforcing or appealing the confirmation of the award, unless the
arbitration agreement specifies otherwise. (Tex. App.) 4. Arbitration: Arbitration clause enforced because no showing of unconsionability was made. (Ohio App. 8 Dist.) __________________________________________________________________________________ 1. Arbitration: A court may not vacate an arbitration award when the arbitrator properly based the award on the parties' valid stipulation. (Mich. App.) 2. Arbitration: Election of arbitration through collective
bargaining agreement waives alternative remedial forum. (Mass.
App. Ct.) 4. Arbitration: Once the Circuit Court orders a case to arbitration it is permanently divested of jurisdiction unless the parties move to confirm, vacate, or modify the award. (S.C.) 5. Arbitration: Although a collateral agreement does not automatically fall under a broad arbitration clause in the related contract, if a determination must be based upon the related contract, the arbitrator must make the interpretation. (E.D.N.Y.) __________________________________________________________________________________ February
2-8, 2004 2. Arbitration: California application of U.S. Supreme
Court ruling that the determination of class-wide arbitration
is a matter for the arbitrator, not the courts. (Cal. App.
2 Dist.) 4. Arbitration: When subrogation for property damage payment is the only fact to be considered by an arbitration panel, the panel's decision on that issue does not equate to a decision regarding policy coverage. (Ohio App.) __________________________________________________________________________________ 1. Collective Bargaining: Under the Railway Labor Act, a major dispute is one that seeks to create new contract rights while a minor dispute seeks only to enforce existing rights. (3rd Cir. (Pa.)) 2. Arbitration: Appellate Court scrutinizes declarations
made in arbitration proceedings to find Transportation Board's
denial of review arbitrary and capricious. (D.C. Cir.) 1. Arbitration: Allowing arbitrators to reconsider awards undermines purpose of providing a speedy forum. (Ohio) 2. Arbitration: Florida Supreme Court reverses panel
award for inappropriate statutory interpretation. (Fla.) 4. Mediation: Confidential information from a separate mediation is admissible at trial "to prevent a manifest injustice." (Wis.) __________________________________________________________________________________ 1. Mediation: A law firm does not breach its standard of care by not reducing a settlement agreement to writing when it knows one party will not sign the agreement. (La. App. 3 Cir.) 2. Arbitration: Personal Injury Protection (PIP) benefits
denied in arbitration have issue preclusive effect in subsequent
court proceedings. (Or. App.) 4. Arbitration: The prevailing party is entitled to reasonable attorney fees incurred after defending an arbitration award under the Michigan Securities Act. (Mich. App.) __________________________________________________________________________________ 1. Arbitration: A third-party beneficiary cannot enforce an arbitration provision contained within a contract for services with another party. (Pa. Super Ct.) 2. Arbitration: A plaintiff can neither change allegations
in a former complaint to avoid arbitration, nor seek to vacate
an award when a panel determined issue of arbitrability at plaintiff's
request. (9th Cir.) 4. Arbitration: An agreement to arbitrate is not rendered ineffective upon a failure of the parties to select an arbitrator or provide for a method of selection in the event of impasse. (Tex. App. (14 Dist.)) __________________________________________________________________________________ 1. Arbitration: When parties move to confirm an arbitration award, a court is obligated to confirm the award unless another party moves to vacate; modify; or correct the award. (Ohio App. 10 Dist.) 2. Arbitration: A choice-of-law provision, staying
arbitration pending related litigation, overrides the Federal
Arbitration Act's presumption in favor of arbitration. (2nd
Cir.) 4. Arbitration: FLSA claims are subject to arbitration when an arbitration agreement is entered into prior to the dispute arising. (5th Cir.) 5. Mediation: General assertions of hardship are not enough to overcome the validity of a forum selection clause. (S.D.N.Y.) __________________________________________________________________________________ March 15- 21, 2004 1. Mediation: A mediation evaluation must address all claims filed in an action. (Mich. App.) 2. Arbitration: A third-party witness may be compelled to produce documents during arbitration but may not be subpoenaed to produce documents before proceedings. (3rd Cir.) 3. Arbitration: Nondisclosure by the arbitrator, attorney or party of previous arbitrations involving the same attorney and arbitrator does not constitute evident partiality or bias on the part of the arbitrator. (Mich. App.) 4. Arbitration: When claims against multiple defendants are inextricably intertwined, the claims should be resolved by the court, instead of pursuant to arbitration that is binding only against one defendant. (Colo. App.) ___________________________________________________________________________________________________________________ 1. Arbitration: An employee of an NASD member firm who signs an arbitration agreement with the NASD must arbitrate all claims arising out of his business or employment with the firm. (Ind. App.) 2. Arbitration: By satisfying the "essence test," an arbitrator's award must receive considerable deference from courts. (Pa.) 3. Arbitration: An arbitration award for attorney fees may be vacated as arbitrary and capricious when the prevailing party failed to specifically plead for attorney fees. (Ga. App.) 4. Arbitration: Under the Railway Labor Act there are only three reasons a federal court can set aside an Arbitration Board decision. (10th Cir. Utah) 5. Arbitration: Appeals over arbitration proceedings cannot be heard by the Pennsylvania Commonwealth Court when the government entity involved is a "local authority" and not a commonwealth entity. (Pa. Cmwlth.) ________________________________________________________________________________________________________________ April 4-11, 2004 1. Arbitration: Despite the strong policy favoring arbitration, an arbitrator may not award relief that offends public policy. (Mass. App. Ct.) 2. Arbitration: A union’s collective bargaining agreement includes subsequently promulgated rules and legitimately applies to non-union employees. (7th Cir.) 3. Arbitration: The Magnuson-Moss Warranty Federal Trade Commission Improvement Act does not bar binding arbitration of consumer’s claims. (Ill.) 4. Arbitration: The choice between testifying and asserting one’s Fifth Amendment rights is not a sufficient basis to stay an arbitration proceeding pending the outcome of a criminal proceeding. (S.D.N.Y.) ________________________________________________________________________________________________________________ April 12-18, 2004 ________________________________________________________________________________________________________________ May 3-7, 2004 1. Arbitration: A union member does not have standing
to appeal an arbitration award when the collective bargaining
agreement between the ________________________________________________________________________________________________________________ May 10-14, 2004 1. Arbitration: Arbitration award arguably violating the principle of resjudicata is not in manifest disregard of the law. 2. Arbitration: Upon motion, proceedings in the district
court should be stayed pending resolution of a non-frivolous appeal
from the denial of a motion to compel arbitration. ________________________________________________________________________________________________________________ May 17-21, 2004 1. Mediation: Mediation sanctions are improper because adjusted award encompasses costs incurred from the date of filing to the date of mediator evaluation and does not include attorney fees. 2. Arbitration: Arbitrators only exceed their authority
by failing to issue a decision in a timely manner if the contract
expressly states time 3. Arbitration: If a party offers to pay all arbitration
fees, an arbitrator may not require the opposing party to pay
those fees as part of 4. Arbitration: The arbitrator should determine a contract’s
merits, and factual allegations are more important than the legal
cause of action _______________________________________________________________________________________________________________ May 24 - 28, 2004 1. Arbitration: Contractual language indicating the intent of the parties determines arbitrability. 2. Arbitration: Conflicting arbitration provisions within the same lease contract violate consumers’ right to agree to clear and unambiguous terms. 3. Arbitration: In determining whether to issue a stay
pending appeal, the court focused on whether the object of the
appeal would be defeated if ________________________________________________________________________________________________________________ May 31 – June 11, 2004 1. Arbitration: Arbitrators exceed their authority
if they decide issues in dispute not specifically raised prior
to the arbitration 2. Mediation: Mandatory mediation in child custody
case can be bypassed ________________________________________________________________________________________________________________ June 14 - 18, 2004 1. Arbitration: Appeal based on arbitrator’s alleged
manifest disregard of the law raises a federal question and gives
rise to subject 2. Arbitration: Arbitrator went beyond the scope of his power when adding a non-party claimant to the award. (Cal.App. 4 Dist., May 26, 2004) 3. Mediation: A mediation settlement agreement does
not need to include all the provisions the parties agree upon.
An incomplete mediation ________________________________________________________________________________________________________________ June 21 - 25, 2004 1. Arbitration: An arbitration order entering a stay, as opposed to a dismissal, is not an appealable final order. (5th Cir., June 7, 2004) 2. Arbitration: When one party files a suit in court,
Louisiana state law requires the opposing party to move for arbitration
before 3. Arbitration: An arbitrator’s award that was
in excess of an undisclosed cap on damages was based on a matter
not submitted to him, and ________________________________________________________________________________________________________________ June 28 – July 2, 2004 1. Arbitration: Despite a choice-of-law clause in a contract, the Federal Arbitration Act applies in cases involving interstate commerce where the choice-of-law clause does not exclude application of federal law. (Tex. App. – Houston 14 Dist., June 22, 2004) 2. Mediation: “Offensive use doctrine” used
in attorney-client privilege should apply similarly to mediation
confidentiality statutes. 3. Arbitration: A Field Services Supervisor’s
discrimination claim was not covered by the FAA because her job
title qualified the claim as an ________________________________________________________________________________________________________________
July 5 - 9, 2004 1. Arbitration: Arbitration clause within a form contract is not unconscionable and is legally enforceable. (7th Cir., June 24, 2004) ________________________________________________________________________________________________________________ July 12 - 16, 2004 1. Arbitration: A law that does not explicitly provide
for arbitration as a remedy does not preclude arbitration.
(3rd Cir., June 25, 2. Arbitration: Modifications to an arbitration award
are an issue for the courts and beyond the scope of an arbitrator’s
authority if issued 3. Mediation: An attorney representing a city had authority to enter a Mediation Settlement Agreement on the city’s behalf even though the mayorwas not present at the mediation. (Ind. Ct. App., June 29, 2004) 4. Arbitration: If a party to an arbitration agreement
cannot read the agreement because of impairment, reliance on the
other party’s ________________________________________________________________________________________________________________ July 26 - 30, 2004 1. Mediation: Photographs and statements prepared for mediation are privileged and therefore inadmissible. 2. Arbitration: An arbitrator has authority to construe ambiguous terms in a collective bargaining agreement. ________________________________________________________________________________________________________________ August 2 - 6, 2004 1. Arbitration: Courts must compel arbitration when
a party has not waived its right to arbitrate and the dispute
is within the scope of the 2. Arbitration: Parties agreeing to arbitrate settlement claims cannot avoid the agreement by alleging their mistake led them to agree. ________________________________________________________________________________________________________________ August 9 - 13, 2004 1. Mediation: Failure to appear at mandatory mediation caused no harm and therefore discretionary sanctions were inappropriate. ________________________________________________________________________________________________________________ August 30 - September 3, 2004 1. Arbitration: Arbitrators have the authority to decide questions of arbitrability. (Conn. U.S. Dist. August 16, 2004) ________________________________________________________________________________________________________________ 1. Arbitration: A court must enforce an arbitration clause that is part of an agreement subject to the Indian Gaming Regulatory Act even though the Chairman of the National Indian Gaming Commission has not approved the agreement. 2. Arbitration: A court cannot uphold an arbitrator's determination that a union is in breach of a collective bargaining agreement when the agreement itself contains an illegal hot cargo provision. 3. Arbitration: A "No-waiver" clause is not enough to force a court to compel arbitration after one of the parties substantially participated in a pre-trial process. 4. Arbitration: Contractor's relationship with homeowners was too tenuous to claim third party beneficiary status or equitable estoppel to compel arbitration. 5. Arbitration: An arbitration agreement contained
in an employment contract is not unconscionable simply because
of unequal bargaining power between parties or because employee
is required to pay a modest arbitration filing fee. ________________________________________________________________________________________________________________ August 20-31, 2004 & September 20 -
24, 2004 1. Arbitration: Although an arbitrator cannot make
a faculty appointment, he may award a professor the pay he lost
as a result of an improper 2. Arbitration: Although an employer paid for his employee’s
funeral costs, the deceased’s relatives were bound to the
arbitration clause in 3. Arbitration: An insured must simultaneously participate
in litigation and arbitration of the same claim with different
insurers, despite the 4. Mediation: Despite statutes limiting the admissiblity
of settlements reached in mediation, settlement terms reached
in mediation are ________________________________________________________________________________________________________________
2. Arbitration: Courts, not arbitrators, must perform
an evidentiary hearing to determine if an agreement to arbitrate
exists between involved 3. Arbitration: A party may not seek to compel arbitration
based on a clause in a contract while at the same time arguing
the contract itself is 4. Mediation: A party to a lawsuit waives its right
to alternative dispute resolution when the right to ADR exists,
the party knows it has the right ________________________________________________________________________________________________________________ 1. Arbitration: Courts may only grant injunctive relief during
a pending arbitration when such relief is “necessary”
to protect the rights of a 2. Arbitration: An arbitration panel may construe an
ambiguous damages clause in a contract to allow treble damages,
and if a party fails to 3. Settlement: A settlement agreement that satisfies
the offer,acceptance, and consideration elements of a contract
forms a binding, ________________________________________________________________________________________________________________ 1. Arbitration: An arbitrator acted beyond his authority
by declaring a company’s zero-tolerance drug policy to be 2. Arbitration: A broad arbitration clause contained
in one account agreement between a bank and its customer 3. Arbitration: If a county does not set a filing fee
for requesting a trial de novo after a mandatory arbitration,
failure to 4. Arbitration: An insurance company must defend a
claim if any part of the cause of action is arguably within the
scope of coverage, 5. Arbitration: An appellate court lacks subject matter
jurisdiction to review a trial court’s decision to remand
an arbitration award ____________________________________________________________________________________________________________ THIS WEEK: 1. Arbitration: The amount in dispute in the underlying
litigation, rather than the amount of the later arbitration award,
determines 2. Arbitration: A third party with a direct and immediate
interest affected by an arbitration award, although judicially
unable to 3. Arbitration: A Marine Reservist may not waive his
right to a jury trial under the Uniformed Services Employment
and Reemployment 4. Mediation: Employee alleges further discrimination
and retaliation after employer disclosed employee’s involvement
in ________________________________________________________________________________________________________________ THIS WEEK: 1. Arbitration: Notwithstanding the presumption that
any doubts concerning the scope of arbitrable issues 2. Arbitration: Trial courts have the authority to
decide arbitrability when the plaintiff specifically challenges 3. Arbitration: A court improperly admitted and relied
upon an arbitrator’s affidavit as evidence that one party
4. Arbitration: A party with constructive knowledge
of potential partiality of an arbitrator waives its right to challenge 5. Mediation Sanctions: An arbitration award does not
have to be the result of a unanimous arbitration decision for
________________________________________________________________________________________________________________ 1. Arbitration: An arbitration award in favor of an
insured party against their insurer is unenforceable to the 2. Arbitration: If an arbitration clause mandates a
buyer has to arbitrate all of her claims but does not limit the 3. Compromise and Settlement: An attorney’s agreement
to a settlement on behalf of a client is unenforceable by a ________________________________________________________________________________________________________________ 1. Arbitration: An arbitration award in favor of an
insured party against their insurer is unenforceable to the 2. Arbitration: If an arbitration clause mandates a
buyer has to arbitrate all of her claims but does not limit the 3. Compromise and Settlement: An attorney’s agreement
to a settlement on behalf of a client is unenforceable by a ________________________________________________________________________________________________________________ 1. Arbitration: An arbitration clause contained within
a contract subject to statutory recission, is still 2. Arbitration: A court should give deference to the
arbitration panel when reviewing its interpretation of a 3. Dispute Resolution: A party to a binding dispute
resolution procedure may not withdraw its claims once the ________________________________________________________________________________________________________________ November 22 - December 3, 2004 1. Arbitration: Disgruntled football fans may avoid
arbitration because the Cincinnati Bengals added an 2. Arbitration: When a court orders binding arbitration,
the parties are entitled to a traditional hearing rather 3. Arbitration: Arbitration panels may not impose monetary
sanctions for discovery violations unless the parties _______________________________________________________________________________________________________________ 1. Arbitration: A well educated, professional couple
are bound to comply with an obvious arbitration 2. Arbitration: Arbitration awards falling under the
Convention on the Recognition and Enforcement of _______________________________________________________________________________________________________________ 1. Arbitration: The District Court had jurisdiction
to enforce the forum selection clause of an 2. Arbitration: The FAA grants arbitrators the authority
to issue subpoenas to non-parties, 3. Mediation: Contract provision that requires participation
in mediation as a condition Updated
by Julie K. Gehring
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