Arbitration: Court Lacked Jurisdiction In An Embedded Proceeding
Arbitration: Court Approves Reducing Discharge To A Suspension
Arbitration: Form Contract Not Unconscionable
Arbitration: Arbitrator Has Subpoena Power In Public Sector Arbitrations
Mediation: Summary Disposition Of Mediation Award Upheld
Mediation Article Online: A Style Index for Mediators
ADR Article: Drafting Dispute Resolution Clauses in Complex Business Transactions
ADR Article: Task Force on Alternative Dispute Resolution and Mass Torts

Arbitration: Court Lacked Jurisdiction In An Embedded Proceeding
Napleton v. General Motors Corporation (7th Cir 3/18/98)

Napleton appeals from a district court order dismissing her action without prejudice to allow for arbitration.  She asserted that the district court misconstrued the scope of the arbitration clause and referred a nonarbitrable issue to arbitration.  The Court of Appeals dismissed for lack of appellate jurisdiction.  The court stated that the issue before the court was an "embedded" proceeding rather than an "independent" proceeding and therefore it had no jurisdiction.  The court distinguished them by explaining that "an independent proceeding, the request to compel arbitration is the sole issue before the court, and in an embedded proceeding, the motion for arbitration is made in the course of a larger
substantive suit."
[Full Decision: 1998 WL 117893)

Arbitration: Court Approves Reducing Discharge To A Suspension
Board of Trustees of Miami Township v. Fraternal Order of Police (Ohio 3/25/98)

The Supreme Court of Ohio (4-3) upheld a labor arbitrator's award which converted a police officer's discharge to a 30 day suspension.  The majority found that the arbitrator had inherent power to determine the reasonableness of the penalty, and that the award "draws its essence from the collective bargaining agreement."  The dissent argued that (1) the
arbitrator improperly considered the employee's "deep guilt," "confession of sin," "change in personality," and (2) the arbitrator failed to address "the nature of the violation" (theft) as required by the contract.
[Full Decision: 81 Ohio St.3d 269]

Arbitration: Form Contract Not Unconscionable
Lackey v. Green Tree Financial Corp (S.C. Ct. App. 3/16/98)

In a class action brought by Lackey and other parties to finance contracts with Green Tree, the trial court found that the arbitration clause was unconscionable because (1) it failed to give notice to the members of the class that they had a right to their own legal counsel during the closing of the loan proceedings, (2) Green Tree had the right to select the arbitrator subject only to the "hollow right" of the class members to veto the selection, and (3) Green Tree had reserved the right to litigate any claims it had, while restricting all claims brought against it to arbitration.  The Court of Appeals reversed disagreeing on all three grounds finding the lack of notice concerning legal counsel was not unconscionable, and finding that the Federal Arbitration Act (FAA) supported enforcement of a contract provision for the appointment of an
arbitrator.  Note: This opinion has not been released for publication in the permanent law reports.  Until so released, it is subject to correction, modification or withdrawal.
[Full Decision: 1998 WL 131396]

Arbitration: Arbitrator Has Subpoena Power In Public Sector Arbitrations
UE Local 893/Iowa United Professionals v. Schmitz (Iowa 3/25/98)
* Unpublished

A social worker in the Iowa Dept. of Human Services filed a grievance pursuant to a collective bargaining agreement between the Union and the State of Iowa. The grievance reached arbitration and the Union asked for the arbitrator, Schmitz, to issue a subpoena duces tecum.  The state objected to compliance with the subpoena and the Union applied for the enforcement of the subpoena. The district court decided no authority existed to issue the subpoena.  The Supreme Court reversed concluding that the Iowa Code Chapter 679A, Iowa's version of the Uniform Arbitration Act, gives arbitrators in public sector arbitrations subpoena power.
[Full Decision: 1998 WL 134245]

Mediation: Summary Disposition Of Mediation Award Upheld
Hensley v. Siegrist (Mich. Ct. App. 3/20/98)

The Hensley's were injured in a car accident by Siegrist, a minor, who was allegedly furnished alcohol by Churchill's.  The Hensley's and Siegrist accepted a mediated decision which found against both Siegrist and Churchill's. Churchill's however, refused to accept the mediated decision and claimed that the Hensley's violated the "name and retain" provision of the Dram Shop Act (DSA).  The DSA requires that plaintiffs can not discharge their claim against Siegrist until a decision is reached concerning the involvement of Churchill's in order to avoid fraud and collusion.  The Court of Appeals affirmed the trial court in dismissing the action by finding that the Hensley's could have made a conditioned acceptance of the mediated decision and were therefore not coerced by a threat of sanctions imposed by statute if the mediated decision was not accepted.
[Full Decision: 1998 WL 126899]

Mediation Article Online: A Style Index for Mediators

The Mediation Information and Resource Center has recently made available A Style Index for Mediators by Jeffery Krivis and Barbara McAdoo.  "Well known mediators Jeff Krivis and Bobbie McAdoo have developed the self-scoring Mediator Classification Index (MCI) to assist mediators in understanding the approach or style that they tend to use during the mediation process."

Details: http://www.mediate.com/articles/krivis2.cfm

Article: Drafting Dispute Resolution Clauses in Complex Business Transactions
Practicing Law Institute - Corporate Law and Practice Course Handbook
Series

By recognizing that contracts which provide for dispute resolution are judged in light of the intentions of the parties, clauses must be written with precision to avoid unfavorable judicial interpretation.  Using the American Arbitration Association as a backdrop, this article provides examples of clauses for arbitration, negotiation, mediation, mini-trial,
and the effects these clauses have on the contract.  The institute also offers clauses which address such concerns as governing law, provisional remedies, discovery, award provisions, and appeals along with many other considerations.
[Full Article: 1025 PLI/Corp 769]

Article: Task Force on Alternative Dispute Resolution and Mass Torts
Practicing Law Institute - Corporate Law and Practice Course Handbook
Series

The AAA task force recommends the use of ADR practices in mass tort, that being litigation arising from widespread exposure to a harmful products or substances.  The task force suggests that the courts should compel the use of ADR techniques and provides comments on specific considerations, such as the inclusion of insurance carriers, administrative mechanisms and ethical treatment of parties.
[Full Article: 577 PLI/Lit 395]