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Recent Developments in Dispute Resolution Newsletter Arbitration:
Court Must Consider Merits Of A Preliminary Injunction Pending
Arbitration Arbitration: Arbitrator Cannot Alter Discipline
In Employment Dispute Arbitration: Court Must Consider Merits Of A Preliminary Injunction Pending Arbitration American Express Financial Advisors, Inc v. Thorley (2nd Cir. 6/26/98) American Express,
having begun proceedings against five of the defendants, sought
a preliminary injunction pending the outcome of the arbitration.
The district court declined to consider the petition on its merits
and held that the proper forum for American Express' request was
arbitration. The Court of Appeals vacated the district court's
decision and remanded for a decision on the merits of American Express'
motion for a preliminary injunction pending arbitration. The
court found that a review of the merits on the motion was within
the sound discretion of the court. Arbitration:
Arbitrator Cannot Alter Discipline In Employment Dispute
Denis Guyton
was terminated by the Township from his position in the City’s Waste
Water Treatment Plant. After a lengthy grievance procedure,
the matter went to arbitration. The arbitrator ruled that
the Township did not have just cause to terminate Guyton despite
his admission that he had lied to his supervisor and his past history
of disciplinary problems. The Township filed a petition to
modify the arbitrator’s decision. The trial court granted
the motion and vacated the arbitration award. The Commonwealth
Court of Pennsylvania affirmed the trial court’s decision using
the “essence test” to determine whether or not the arbitrator’s
award could be rationally derived from the CBA. The court
found that it was the duty of the arbitrator to interpret the term
“just cause,” but the arbitrator did not have the authority to alter
the discipline imposed by the Township. Arbitration:
Arbitrator Exceeded Authority In Employment Dispute Maurice Howie
was employed as a youth home-life supervisor at the Rhode Island
Training School. Howie was responsible for the supervision
and discipline of juvenile offenders assigned to him. A news reporter
notified the Department of Children, Youth and Families (DCYF) that
Howie had been convicted on a domestic-violence charge while working
for the DCYF. After a hearing, which Howie did not attend,
the DCYF discharged Howie. The Union filed a grievance on
behalf of Howie, and the matter went to arbitration. The arbitrator
ruled that the DCYF did not have just cause to terminate Howie and
ordered that he be reinstated with full back pay and benefits.
The trial court then denied DCYF’s petition to vacate the arbitration
award and confirmed the award. The Supreme Court of Rhode
Island reversed and vacated the judgement. The court held
that the arbitrator had exceeded his authority by disregarding the
DCYF’s management and employment-termination policy under the governing
CBA. Arbitration:
Award Given Without Explanation Overturned Sette-Juliano
received over 1 million dollars in an arbitration award against
a bond issued by Aetna which it entered as a lien. After Sette-Juliano
received summary judgment on its foreclosure, Aetna appealed.
Because Sette-Juliano’s claim sought recovery for work done beyond
the coverage of the bond and the arbitrator’s award did not include
any explanation, the court concluded that the award likely included
amounts outside the scope of the surety’s obligations. The
court further concluded that the surety’s “minor” participation
in the arbitration did not forfeit their right to contest the validity
of the lien and vacated the judgment. Mediation:
Mediation Testimony Permitted Despite Statute To The Contrary
Emge, the President
of a small corporation, fired Kenney, the Secretary and only other
shareholder, after disputes arose over Kenney’s poor performance
in sales and marketing. The parties submitted to an unsuccessful
mediation and proceeded to court. Although Section 435.014
RSMo clearly states that a mediation proceeding is to be confidential,
Kenney did not object to testimony given by Emge or the judges suggestion
that the mediator testify until a week later when the mediator was
sworn. The objection was overruled and the mediator gave limited
testimony and the court upheld Kenney’s termination. The Court
of Appeals concluded that such testimony was indeed in violation
of Section 435.014 but found that Kenney was not prejudiced by the
testimony, relying in part on Kenney’s lack of objection to testimony
regarding the mediation and affirmed the trial court’s decision.
ADR Online: Litigation vs. Mediation Options -- A Checklist For Trademark/Unfair Competition Dispute Managers This article provides a checklist to help disputants evaluate the pros and cons of litigation and mediation. The web site is equipped with a form that allows users to appraise their dispute and decide whether to litigate or mediate. Details: http://www.inta.org/adrcklst.htm ADR Online:
Barriers To Every Day Communication One of the most common complaints from clients entering mediation is that they cannot communicate with each other. All of us have experienced, at one time or another, the frustration of feeling misunderstood and being unable to make ourselves be understood by another person. This article introduces the concepts of good communication and discusses some of the common barriers to communication. Details: http://www.mediate.com/articles/foster.cfm ADR Online: Mediation Pitfalls And Obstacles This article
discusses situations where mediation may not be appropriate and
how to handle the pitfalls of these problems. 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")
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