Recent Developments in Dispute Resolution             02/04/98
Willamette Law Online  -  Willamette University College of Law

* Court Can Compel Discovery of Mediation Settlement
* Conditional Privilege Between Social Worker and Mediator
* Out Of State Attorneys Cannot Recover Fees For In State Services
* Participation in Mandatory Arbitration Is  Not "Election to Arbitrate"
* Court Denies Arbitration in Interpreting Reinsurance Contract
* First Circuit Rules ADA Claims Are Arbitrable
* Arbitrator Did Not Exceed Authority By Reinstating To Different Unit
* Whistleblower Claims Under FIRREA Are Arbitrable

Court Can Compel Discovery of Mediation Settlement
Datapoint Corporation v. Picturetel Corporation (ND Tex 1/14/98)

Plaintiff Datapoint and intervenor-plaintiffs Frassanito and
Monroe entered into a mediation settlement agreement, which was subject to
the terms of a final judgment (which precluded disclosure unless ordered
by the court).  Defendant Picturetel moved to compel production of that
settlement agreement, as well as testimony related to it.  Plaintiffs
contended that disclosure of the information was prohibited by Southern
District of Texas local rule 20(I) (because the settlement resulted from
mediation), and by Fed.R.Evid. 408 (which would preclude the agreement
from being admitted in evidence).  The court held that the information
sought is not privileged, and the local rule does not render otherwise
non-privileged settlement communications privileged because the court
itself had the authority (via the final judgment) to order disclosure.
[1998 WL 25536]

Conditional Privilege Between Social Worker and Mediator
John v. Family Service of Waukesha  (Wis App 1/28/98)

In a visitation dispute, one of the parties got the help of a social
worker to notify the mediator of possible child abuse at the hands of the
opposing party.  The court held that the letter which contained the
accusations was not defamation and fell under the defense of common
interest conditional privilege.  In so holding, the court found that the
social worker held a common interest with the mediator in the child's
welfare.
[1998 WL 27312]

Out Of State Attorneys Cannot Recover Fees For In State Services
Birbrower, et at v. Superior Court of Santa Clara (Cal 1/5/98)

A California client sued a New York law firm for malpractice; the firm
countersued for fees.  The California Supreme court ruled that the firm
had violated the statute prohibiting the practice of law in California by
persons not members of the state bar when the firm represented the client
by making preliminary arbitration arrangements and negotiating a
settlement.  As such, the firm could not recover fees for services
performed in state.
70 Cal.Reptr.2d 304

Participation in Mandatory Arbitration Is Not "Election to Arbitrate"
Douglass v. Allstate Ins. Co. (Or App 1/21/98)

The Oregon Court of Appeals reversed the trial court's denial of attorney
fees in this action against a defendant insurer for nonpayment of
uninsured motorist benefits.  The plaintiff's participation in mandatory
court-annexed arbitration did not constitute an "election to arbitrate,"
which would preclude an award for attorney fees.
[1998 WL 18080]

First Circuit Rules ADA Claims Are Arbitrable
Bercovitch v. Baldwin School, Inc. (1st Cir 1/12/98)

In a matter of first impression for the First Circuit, the Court of
Appeals ruled that a plaintiff may be required to arbitrate ADA claims
where that plaintiff has voluntarily signed an agreement requiring
arbitration.  The court relied upon the strong federal policy in favor of
arbitration, as well as the Gilmer decision.
[1998 WL 5845]

Arbitrator Did Not Exceed Authority By Reinstating To Different Unit
Coastal Oil of New England v. Teamsters (1st Cir 1/23/98)

When an injured employee sought to return to work following his medical
leave of absence, he found his position had been filled; employer Coastal
Oil refused to reinstate the employee to an available position in a
different work unit.  Employee grieved.  The arbitrator awarded the
employee the position in the different unit.  The Court, reviewing the
award very narrowly,  rejected the Coastal's argument that the arbitrator
had exceeded his authority.
[1998 WL 17611]

Whistleblower Claims Under FIRREA Are Arbitrable
Oldroyd v. Elmira Savings Bank (2nd Cir 1/14/98)

Plaintiff was terminated from his position as director of Management
Information Systems at defendant's bank after plaintiff told the US
Treasury Department's Office of Thrift Supervision about illegal
activities at the bank.  Plaintiff sued the bank under the whistleblower
protection provision of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA).  The District Court had denied the
Bank's motion to stay the proceedings in favor of arbitration (plaintiff
had signed an arbitration agreement).  The Court of Appeals reversed and
found the matter arbitrable because plaintiff had not shown that Congress
intended to preclude a waiver of a judicial forum for such claims.
[1998 WL 11056]

EDITOR'S NOTE: Our Document Retrieval System is still down.  Therefore, we
have provided Westlaw cites in place of document retrieval numbers.  We
hope to continue the document service in the near future.  Thank you for
your patience.  You can find links to some decisions on our web page as
well:
   http://www.willamette.edu/dis-res/

Recent Developments in Dispute Resolution
Willamette Law Online  -  Willamette University College of Law
Faculty Editor:  Ross Runkel            rrunkel@willamette.edu
Student Editor:  David Griggs           dgriggs@willamette.edu
Student Editorial Board: Sara Allen, Andrew Glascock,
        Robert Hutchings, Deborah Keller and Amy Smith
http://www.willamette.edu/dis-res/