Recent Developments in Dispute Resolution Newsletter
(Willamette University College Of Law)
October 27, 1998

Arbitration: ADA Claim Not Subject To Mandatory Arbitration
Arbitration: Arbitrator May Not Issue Enforceable Subpoenas
Arbitration: Inability To Speak English Does Not Constitute A Lack Of Good Faith In Arbitration Proceeding
Arbitration: Arbitrator Denied Party Review of Duplicate Evidence After Evidence Was Misplaced
Mediation: Mediation Agreement Precluded Indemnification Action
ADR Online: Building A Successful Mediation Practice

Arbitration: ADA Claim Not Subject To Mandatory Arbitration Dickerson v. United Parcel Service (N.D.Tex. 10/6/98)

After failing to sustain his claim of discrimination relating to an alleged on the job back injury, Dickerson sought to have his grievance pursued in arbitration.  His union representative, the Teamsters, refused to do so and Dickerson sought to pursue his ADA claim in court.  The court concluded that an employee asserts an independent statutory right - one outside the collective bargaining agreement (CBA), by filing a Title VII claim.  The court reasoned that a CBA which contains an arbitration clause is distinguishable from a contract containing such a clause which applies to an individual.  Therefore, arbitration of a CBA dispute which does not contemplate statutory claims, is necessarily limited to contractual remedies and can not be extended to statutory rights. [Full Decision On Westlaw: 1998 WL 713290]

Arbitration: Arbitrator May Not Issue Enforceable Subpoenas Michigan State Employees Assoc. v. Michigan Liquor Control Com. (Mich.App. 10/6/98)

Employees challenged a decision to eliminate state operated liquor warehousing and distribution.  During the arbitration, the arbitrator issued subpoenas which were enforced by the circuit court and the Commission appealed.  The court found no implied authority to subpoena in the American Arbitration Association (AAA) rules which stated that an arbitrator may subpoena witnesses and documents if authorized by law.  Because the parties’ CBA is exempt from the Federal Arbitration Act and several other arbitration statutes, their language authorizing subpoena authority is inapplicable.  The court concluded that subpoena authority is not necessary for a fair hearing and that absent expressed language, it would not find such authority present. [Full Decision On Westlaw: 1998 WL 696019]

Arbitration: Inability To Speak English Does Not Constitute A Lack Of Good Faith In Arbitration Proceeding State Farm Insurance Co. v. Kazakova (Ill.App. 10/14/98)

Defendant, Stella Kazakova, appealed from the orders of the circuit court finding: (1) that she did not participate in good faith and in a meaningful manner at the mandatory-arbitration hearing and that she violated the notice to appear by not appearing with a foreign-language interpreter, (2) sanctioning her by debarring her from rejecting the arbitration award in favor of plaintiff, State Farm Insurance Company, as subrogee, and (3) denying her motion to vacate the sanction.  The Court of Appeals reversed, finding that she was not in violation of applicable Supreme Court Rules governing arbitration in part because she appeared and did not deliberately disregard the rules of the court. [Full Decision On Westlaw: 1998 WL 718212]

Arbitration: Arbitrator Denied Party Review of Duplicate Evidence After Evidence Was Misplaced Circle Industries v. Parke Construction Group, Inc. (E.D.N.Y. 10/8/98)

Circle Industries and Parke Construction entered into a joint venture for Parke to build a structure for Circle in Atlanta, Georgia.  A dispute between the parties was submitted to arbitration.  The arbitrator conducted five days of hearings.  Some of the evidence was misplaced by the arbitrator while he was reviewing the case and preparing his decision.  He requested duplicates from both sides and was provided with them.  The arbitrator then issued a ruling in favor of Parke.  Circle brought this action to vacate the award on the grounds that the arbitrator had violated rules 29, 31 and 32 of the Federal Arbitration Act by not allowing Circle to review the duplicate evidence from Parke, and refusing to hear material evidence.  The court stated that Circle had failed to meet their burden of proof by showing that they were “denied a fundamentally fair hearing and consequentially suffered prejudice.” The court noted that Circle had already reviewed the evidence presented by Parke, therefore no prejudice occurred.  Further, the arbitrator had not refused to hear material evidence because Circle had ample time to present evidence at the hearing and in post hearing briefs.  Therefore the court dismissed Circle’s petition to vacate the arbitration award. [Full Decision On Westlaw: 1998 WL 713305]

Mediation: Mediation Agreement Precluded Indemnification Action Hurst v. American Racing Equipment, Inc. (Tex.App. 10/16/98)

American Racing Equipment (ARE) is a manufacturer of automobile wheels.  Longview Wheel and Performance (LWP) bought the wheels from ARE and sold them to Hurst.  LeTourneau bought the wheels from Hurst.  While LeTourneau was operating his van all the lug bolts sheared off resulting in an accident.  LeTourneau and Hurst entered into a mediation agreement with LeTourneau to settle all of LeTourneau’s product liability claims against Hurst.  Hurst then sued ARE and LWP to indemnify him against LeTourneau’s claims.  ARE and LWP sought and were awarded summary judgment because they had already settled through mediation the products liability claims and there was no judicial finding of liability on the part of ARE or LWP on which Hurst could base a claim of indemnity.  The court found that the mediation agreement between Hurst and LeTourneau only applied to products liability claims, therefore ARE and LWP would not have to indemnify Hurst for LeTourneau’s negligence claims.  The court then affirmed the trial court’s judgment denying Hurst recovery for indemnification, but severed the separate issue of attorney’s fees and costs for further proceedings. [Full Decision On Westlaw: 1998 WL 720012]

ADR Online: Building A Successful Mediation Practice By James C. Melamed

This article discusses what is needed to build a successful mediation practice from a business perspective.

Details: http://www.mediate.com/articles/building.cfm