Arbitration: Ninth Circuit Voids Title VII Pre-Dispute Arbitration Agreements
Arbitration: Court Compelled Arbitration In Patent Licensing Agreement Arbitration: Fraud In Inducement Of Arbitration Provision Can Defeat Motion To Compel Arbitration
Mediation: Custody Agreement Bound Parties To Mediation
ADR Online: Computer-Based Risk Analysis: A Tool for Mediators
ADR Online: Useful ADR Sites On The World Wide Web
ADR Announcement: The White House Advocates ADR

Arbitration: Ninth Circuit Voids Title VII Pre-Dispute Arbitration Agreements
Duffield v. Robertson Stephens & Co (9th Cir. 5/8/98)

The Ninth Circuit held that employers may not enforce a requirement that employees submit Title VII disputes to arbitration.  Duffield signed a Form   U-4 as a condition of employment as a securities broker-dealer.  Form U-4 includes an agreement to arbitrate "employment related" disputes.  When Duffield sued her employer under Title VII, the trial court issued an order compelling arbitration, and the Ninth Circuit reversed.  Section 118 of the Civil Rights Act of 1991 provides:  "Where appropriate and to the extent authorized by law, the use of . . . arbitration is encouraged to resolve disputes arising under [Title VII]."  The court read Section 118 to mean that Congress "evinced an intention to preclude a waiver of judicial remedies."  The court found that at the time Section 118 was drafted, Alexander v. Gardner-Denver (USSCt 1974) had been interpreted as precluding enforcement of compulsory agreements to arbitrate future Title VII claims.  That interpretation became the intent of Congress, even though Gilmer v. Interstate/Johnson Lane (USSCt 1991) (enforcing Form U-4 arbitration of an ADEA claim) was decided before Congress enacted Section 118.
[Full Decision On Westlaw: 1998 WL 227469]

[Editor's Comment:  This is the first circuit court case to squarely hold that Congress intended that individually-signed pre-employment pre-dispute arbitration clauses be unenforceable in Title VII cases.  The decision assumes that (1) Congress misunderstood Gardner-Denver, which held that an employee whose union has already arbitrated under a collective agreement is not barred from bringing a Title VII suit, and (2) Congress ignored Gilmer, which held that an individually-signed pre-employment pre-dispute arbitration clause is enforceable in ADEA cases.]

Arbitration: Court Compelled Arbitration In Patent Licensing Agreement
Telectronics Pacing Systems, Inc. v. Guidant Corporation (8th Cir. 5/4/98)

The Telectronics Group and the Lilly Group had entered into a patent cross-licensing agreement in 1994, by which they provided each other with nonexclusive licenses and sublicenses under their respective patent holdings covering cardiac stimulation devices.  Telectronics transferred its licensing rights to Pacesetter when they bought them out.  The Lilly Group filed an action disputing the transfer of the licensing rights to Pacesetter.  Telectronics and Pacesetter filed suit seeking injunctive and declaratory relief to enforce the arbitration provisions of the 1994 licensing agreement.  The district court denied relief deciding that the 1994 agreement did not give the arbitrator the exclusive authority to determine whether the existence of a necessary third party rendered a dispute inarbitrable under the agreement.  The Court of Appeals reversed stating that the 1994 agreement gave the arbitrator the power to decide the dispute because the parties had expressly reserved resolution of that issue for an arbitrator.
[Full Decision On Westlaw: 1998 WL 227469]

Arbitration: Fraud In Inducement Of Arbitration Provision Can Defeat Motion To Compel Arbitration
ABM Farms, Inc. v. Woods (Ohio 4/29/98)

Woods signed an “Acceptance Form” which created a brokerage account and confirmed the transfer of securities to Advest, the employer of broker Allan B. Maust (ABM Farms). The contract was less than a quarter page long and contained an arbitration provision.  Woods later filed a complaint against Advest and Maust alleging fraud, breach of broker’s duty, and intentional infliction of emotional distress.  Maust filed a motion to stay pending arbitration.  Woods claimed that the arbitration provision was not enforceable because it constituted fraud in the inducement of the contract.  The Supreme Court held that to defeat a motion to stay pending arbitration, "a party must demonstrate that the arbitration provision itself in the contract at issue, and not merely the contract in general, was fraudulently induced."  Woods did not meet the standard because she failed to read the short contract that contained the arbitration provision in plain language and regular print.
[Full Decision On Westlaw: 1998 WL 174945]

Mediation: Custody Agreement Bound Parties To Mediation
Gaston v. Gaston (Alaska  2/20/98)

Samuel and his former wife Susan signed a custody agreement that allowed them to change the physical custody arrangement after one year.  The agreement contained a clause that allowed mediation or court modification if they disagreed on changes to the agreement.  After nine months, the agreement was slightly modified.  One year later, Susan decided the new arrangement was not in the children's best interest and she wanted to go back to the original agreement.  Samuel filed a motion requesting mediation or court modification because he wanted to keep the new schedule.  The superior court denied his request ruling in part that the agreement's mediation provision had lapsed.  The Supreme Court reversed holding that the former wife was estopped by her agreement to the modified visitation schedule from arguing that the mediation provision of the separation agreement had lapsed.  The court remanded the case to the superior court for an order requiring the parties to mediate the dispute.
[Full Decision On Westlaw: 1998 WL 66137]

ADR Online: Computer-Based Risk Analysis: A Tool for Mediators
Article by David Hoffer

Mediators can use computer-based decision analysis to help parties overcome a number of barriers to settlement.  Using software that can build and analyze decision trees, a mediator can help facilitate a cooperative effort among litigants and lawyers to arrive at a joint valuation of the dispute.  In addition, the use of a "scientific" valuation methodology can add an air of legitimacy that can facilitate settlement.

Details: http://www-legal.sbs.umass.edu/center/hoffer.html

ADR Online: Useful ADR Sites On The World Wide Web
Article by James Boskey

This article provides a useful list of Alternative Dispute Resolution sites that are available on the World Wide Web.   The list is not exhaustive but provides major sites that will make good starting points for the web surfer with an interest in Dispute Resolution.

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

ADR Announcement: The White House Advocates ADR
(Office of the Press Secretary  - Palo Alto, CA 5/1/98)

President Clinton recently sent a memo to all executive departments and agencies in an effort to encourage the use of ADR.  The memorandum expressed a an internal effort for the government to operate in a more efficient and effective manner.  Federal agencies are now required to " (1) promote greater use of mediation, arbitration, early neutral evaluation, agency ombuds, and other alternative dispute resolution techniques, and (2) promote greater use of negotiated rulemaking."

The President directed the creation of An Alternative Dispute Resolution Working Group headed by the Attorney General.  The Working group is to  "comprised of the Cabinet Departments and, as determined by the Attorney General, such other agencies with a significant interest in dispute resolution."

"The Working Group shall facilitate, encourage, and provide coordination for agencies in such areas as:  (1) development of programs that employ alternative means of dispute resolution, (2) training of agency personnel to recognize when and how to use alternative means of dispute resolution, (3) development of procedures that permit agencies to obtain the services of neutrals on an expedited basis, and (4) recordkeeping to ascertain the benefits of alternative means of dispute resolution."