Arbitration: Objectors To Calculation Of Agency Shop Fees Are Not Required To Exhaust Arbitral Remedies Before Bringing Suit
Arbitration: NJ’s APDR Act Does Not Violate The Constitutional Right To Appeal
Arbitration: Civil Service Act Did Not Violate The Texas Constitution
Mediation:  Party Is Not Entitled To A Second Award Of Attorney Fees
ADR Online: The Pros and Cons of Mediation
ADR Online: Ethics Within The Mediation Process
ADR Online: The Attorney-Client Privilege and Arbitration

Arbitration: Objectors To Calculation Of Agency Shop Fees Are Not Required To Exhaust Arbitral Remedies Before Bringing Suit
Air Line Pilots Association v. Miller et al. (U.S. 5/26/98)

"Pilots who were not members of pilots' union brought action challenging union's calculation of agency shop fees collected from nonmembers, and union initiated arbitration proceedings. Pilots sought injunction to stop arbitration. The United States District Court for the District of Columbia, 1995 WL 864556, Norma Holloway Johnson, J., denied injunction and subsequently sustained decision of arbitrator, who sustained union's agency fee calculation in substantial part. Pilots appealed. The Court of Appeals for the District of Columbia Circuit, 108 F.3d 1415, reversed. Certiorari was granted. The Supreme Court, Justice Ginsburg, held that when a union adopts an arbitration process for challenges to the calculation of agency shop fees, objectors are not required to exhaust the arbitral remedy before bringing claims in a federal court unless they have agreed to do so, abrogating Lancaster v. Air Line Pilots Assn. Int'l, 76 F.3d 1509."
[Full Decision On Westlaw: 1998 WL 259977]
[Decision Online: http://supct.law.cornell.edu/supct/html/97-428.cpanel.html]

Arbitration: NJ’s APDR Act Does Not Violate The Constitutional Right To Appeal
Mt. Hope Development Assoc. v. Mt. Hope Waterpower Project (N.J. Sup. Ct. 6/2/98)

After the Development Association lost its suit and subsequent effort to vacate the decision rendered under the Alternative Procedure for Dispute Resolution Act, (APDRA) it sought an appeal and was denied. Article VI, Section 5 of the New Jersey constitution guarantees the right to appeal; however, that right may be waived by express agreement.  As the APDRA, a voluntary process where disputes are submitted to an umpire, unmistakably informs parties that the right to appeal is waived and allows for modification of its rules by the parties.  The right to an appeal could have been included. The court the APDRA did not unconstitutionally bar the right of the Development Association to appeal.
[Full Decision: 1998 WL 279338]

Arbitration: Civil Service Act Did Not Violate The Texas Constitution
Proctor v. Andrews (Tex. 6/5/98)
 
Proctor, Osborne and Yeats were all suspended from the Lubbock City Police force for separate violations of the Local Civil Service Rules.  The three sought to arbitrate the dispute pursuant to the Civil Service Act.  The Act provides that the dispute be referred to either the American Arbitration Association (AAA) or the Federal Mediation and Conciliation Service  (FMCS).  Either group is to provide a list of arbitrators who are both “neutral” and “qualified”.  The City of Lubbock refused to submit the dispute to either group stating that 1.) the Civil Service Act infringes on its rights of autonomy as a “Home Rule City,” and 2.) that the Civil Service Act violates the Texas Constitution (Art III, Sec 1) because it delegates legislative authority to the AAA and FMCS to determine what the terms “neutral” and “qualified” actually mean.  The Supreme Court employed an eight factor test to determine that the Civil Service Act did not violate either Art III Sec 1, or the “Home City Rule”.
[Full Decision On Westlaw: 1998 WL 288749]

Mediation: Party Is Not Entitled To A Second Award Of Attorney Fees
Mcauley v. General Motors Corporation (Mich. 6/2/98)

The Michigan Employment Security Commission agreed to refer prospective employees to GMC who passed a standardized aptitude test.  The MESC did not refer Mcauley to GMC after he failed a manual dexterity test due to nerve damage.  Mcauley received a job with GMC a short time later and sued MESC and GMC under the Handicappers’ Civil Rights Act.  A mediation evaluation of $12,500 for Mcauley was rejected by both parties.  Mcauley subsequently received a $40,281.25 judgment which included attorney fees.  However, under the mediation rule, MCR 2.403,  a party who rejects a mediation proposal and receives a less favorable decision in court must pay the other parties attorney fees incurred after the mediation.  The Supreme Court overturned the appellate courts decision to award a second set of attorney fees pursuant to MCR 2.403 because that award would be punitive in nature and the statue was not designed to administer those types of damages.
[Full Decision 1998 WL 282971]

ADR Online: The Pros and Cons of Mediation
By Judith P. Meyer

"To mediate or not to mediate--that is the question for more and more people who have conflicts to resolve."  This article uses several hypothetical situations to explore the pros and cons of mediating.
Details: http://www.adr.org/drj/pro_con_of_mediation.html

ADR Online: Ethics Within The Mediation Process
By Mattox Hair, Sharon Press and Brooks Rathet

The article discusses the ethical and professional concerns involved in the mediation process with Florida as a state model.  Florida requires mediators to go through specific certification training. The state created the Mediator Qualifications Advisory Panel to provide mediators with guidance and interpretations of the rules and conduct.
Details: http://www.adr.org/currents/ethics_in_mediation_process.html

ADR Online: The Attorney-Client Privilege and Arbitration
By James H. Carter

This article tries to address the question of whether the attorney-client privilege is applicable to documents subpoenaed in an arbitration.  The answer to this question is not always so clear and the arbitration rules generally do not say much about privileges, and statutes even less.
Details: http://www.adr.org/currents/attorney-client_priv_and_arbitration.html

Recent Developments in Dispute Resolution
Willamette Law Online  -  Willamette University College of Law
Faculty Editor:  Ross Runkel - rrunkel@willamette.edu
Student Editor:  Kevin Cheatham - kcheatha@willamette.edu
Student Editorial Board: David Ward, Alison Hohengarten, Scott Perry
Website: http://www.willamette.edu/law/wlo/dis-res/
(Past Newsletters: Available Online At The Website Under "DR Newsletter")