Arbitration: Arbitration Agreement Ruled Unlawful Contract Of Adhesion.
Arbitration: Arbitrability Does Not Have To Be Decided Before An Award
Arbitration: Arbitration Award Is Not Entitled To Collateral Estoppel
Mediation: Attorney Has Inherent Power To Bind Client In ADR Proceeding
Article: EEOC Disapproves Mandatory Binding Employment Arbitration
Article: Critical Path to Mediating High-Tech Disputes
ADR Online: Should A Mediator Also Be An Attorney?

Arbitration: Arbitration Agreement Ruled Unlawful Contract Of Adhesion
Hooters of America Inc v. Phillips (District Court of South Carolina 3/12/98)

Employer moved to compel arbitration after employee filed a sexual harassment claim.  Hooters employees signed an arbitration agreement before knowing all of the terms.  The employees were led to believe that not signing the agreement would be detrimental to their careers.  The terms were later included in the employee handbook. The court found the employer's failure to distribute the rules to employees as circumstantial evidence that the employer knew that the employees would object to the terms.  The court denied the employer's motion to compel arbitration and held the arbitration agreement to be an unenforceable contract of adhesion.
[Full Decision On Lexis: 1998 U.S. Dist. LEXIS 3962]

Arbitration: Arbitrability Does Not Have To Be Decided Before An Award
National Association of Broadcast Employees & Technicians v. ABC (2nd Cir 4/15/98)

NABET appeals District Court's confirmation of arbitration award in favor of ABC on two grounds (1) that arbitrator had no power to hear arbitration and (2) that NABET should get a second hearing because no court determined prior to the first arbitration hearing that the dispute was arbitrable.  The Court of Appeals affirmed stating that the proposed rule would frustrate the fundamental goal of mediation (simple and expeditious alternative to litigation)  and that arbitrability does not have to be decided before an award is made.  The court reasoned that parties can ask the court to enjoin proceedings or can raise the issue in a judicial conference.
[Full Decision On Westlaw: 1998 WL 174671]

Arbitration: Arbitration Award Is Not Entitled To Collateral Estoppel
Orrick v. San Joaquin Community Hospital (Cal. App. 5th 4/7/98)

Orrick suffered complications from surgery and moved to compel surgeon to binding arbitration under health care contract.  Orrick prevailed and was awarded $241,066.  The hospital filed a motion for summary judgement claiming Orrick was barred from further recovery by collateral estoppel. The Court of Appeals decided that an arbitration award is not entitled to collateral estoppel because the public policy favoring arbitration was not outweighed by the policy disfavoring litigation of the same issue in a subsequent suit. Although the (five) threshold requirements for collateral estoppel were met, the inability of a party to obtain judicial review of the arbitral award militated against using the results of a prior proceeding as a sword in subsequent litigation.
[Full Decision On Westlaw: 1998 WL 164789]

Mediation: Attorney Has Inherent Power To Bind Client In ADR Proceeding
Koval v Simon Telelect, Inc. (Ind. 03/31/98)

Under the Indiana ADR rules, an attorney for a party can bind his or her client in an ADR proceeding using an analogous rule for "in court" proceedings.  “[I]n the absence of a communication of lack of authority by the attorney, as a matter of law, an attorney has the inherent power to settle a claim when the attorney attends a settlement procedure governed by the ADR rules."
[Full Decision On Westlaw: 1998 WL 146193]

Article: EEOC Disapproves Mandatory Binding Employment Arbitration
Louisiana Bar Journal - February 1998

In July 1997, the Equal Employment Opportunity Commission (EEOC) concluded that mandatory employment arbitration agreements are inconsistent with civil rights laws and will disregard those agreements and process charges against employers.  Federal courts have thus far rejected this claim in every suit brought by the EEOC.
[Full Article On Westlaw: 45 La. B.J. 443]

Article: Critical Path to Mediating High-Tech Disputes
Practicing Law Institute – Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series
PLI Order No. G4-4042 - February 1998

Mediation’s efficiency and flexibility makes it the ideal choice for resolving disputes in an industry noted for rapid change.  Unfortunately mediators knowledgeable in high-tech issues are in short supply.  Attorneys and clients view the lack of in-depth industry related knowledge as the greatest bar to entering into mediation.
[Full Article On Westlaw: 507 PLI/Pat 1081]

ADR Online: Should A Mediator Also Be An Attorney?
Article by Cris M. Currie

"Among the more hotly debated issues concerning appropriate qualifications for mediators is the question as to whether it is preferable for mediators to also be lawyers.  In many states, a law degree is a prerequisite for being listed as a court approved mediator. While most jurisdictions permit disputants to choose any mediator, non-attorney mediators are not always considered by court referred disputants. This is because, for most people, it is just easier to pick a name from the court approved list than to do their own research."

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