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Recent Developments in Dispute Resolution Newsletter Arbitration:
Arbitrator Did Not Exceed Authority Because Decision Derived From
Language Of Contract Arbitration:
Arbitrator Did Not Exceed Authority Because Decision Derived From
Language Of Contract The Intermountain
Power Agency (IPA) and the Union Pacific Railroad entered into a
transportation services agreement to transport coal between two
points in Utah. Part of the agreement provided for a semiannual
transportation rate adjustment to be determined by the Rail Cost
Adjustment Factor (RCAF) published by the Interstate Commerce Commission
(ICC). The agreement further stated that if the RCAF were
modified the parties would be bound by that modification.
In March 1989, the ICC published another RCAF in addition to the
existing RCAF. The new RCAF included an adjustment for productivity.
IPA took the position that the new RCAF constituted a modification
and therefore should control. The Union Pacific disagreed.
An arbitrator settled the matter in favor of Union Pacific.
IPA filed a motion to vacate the award on the grounds that the arbitrator
had exceeded his authority. The Supreme Court of Utah held
that the arbitrator had not exceeded his authority because his ruling
was derived directly from the contractual language of the agreement.
Arbitration:
Mere Appearance of Bias Does Not Disqualify Arbitrator The defendant,
Lumberman's Casualty Company, appealed the judgment of the trial
court vacating an arbitration award against Edmonds and in its favor.
The only issue before the arbitrator was the amount of damages,
resulting from physical injuries in a motor accident. The arbitration
panel denied the plaintiff's claim and she moved to vacate the award,
alleging a bias from one of the panel members. The Court of
Appeals ruled that the mere appearance of bias does not disqualify
an arbitrator, a party must demonstrate actual bias, rather than
mere potential bias, to overturn an arbitration award. Mediation:
Government Ordered To Be Represented In Mediation In an estate
tax action, the district court ordered that the United States be
represented at mediation by a person with full settlement authority.
The United States petitioned for a writ of mandamus seeking to vacate
the order. The Court of Appeals affirmed and held that the
order was not an abuse of discretion. The court recommended
that the district court consider alternatively ordering the government
to have the person or persons identified as holding full settlement
authority to consider settlement in advance of mediation and be
fully prepared and available by telephone to discuss settlement
at the time of mediation. Mediation:
No Evidentiary Privilege Existed Against Disclosure of Mediation
Individuals
who had participated in a mediation session under an agricultural
loan mediation program administered by the state of Texas pursuant
to the federal Agricultural Credit Act sought to quash a grand jury
subpoena which had been served on the program's custodian of records
and which demanded, inter alia, information relating to the session.
The district court quashed the subpoena, and the federal government
appealed. The Court of Appeals held that: (1) the individuals had
standing to challenge the subpoena; (2) the issue was not moot even
though the information had been turned over to the grand jury; and
(3) no evidentiary privilege existed against disclosure of the information
to the grand jury ADR Online:
International Arbitration Law: When an Arbitrator Withdraws
This article discuses the problems surrounding the unauthorized withdrawal of an arbitrator after the proceedings have begun. This well known delaying tactic has become a problem in arbitration. This article provides suggestions on how to deal with this situation. Detail: http://www.ljx.com/practice/arbitration/0604intarb.html ADR Online:
How Structure Helps Mediation Plan This article discusses a five stage approach to mediation that can be followed in almost any mediation case. Details: http://www.mediate.com/articles/krivis.cfm ADR Online:
How Installing A Neutral Fact-Finding Program Helps Companies
Deal While most employment disputes can be handled internally by a company, some disputes resist resolution by direct methods. In such cases, a neutral third party can assist by conducting a fact-finding investigation. Such investigations can head off litigation. Details: http://www.cpradr.org/alt_scrn.htm ADR Article:
The Federal Workplace Ombuds The author conducted extensive interviews with the ombudsman from several Federal agencies such as the Secret Service, the U.S. Information Agency, and the Department of Energy and discusses common areas of confidentiality, neutrality, mission and structure and impetus to create the ombuds office. A universal compliment for the office was the noticeable decrease in the number of EEO claims as the Ombudsman effectively filtered out claims that could not be properly handled through the traditional, ridged grievance system. Strict confidentiality and neutrality solidify the Ombudsman’s credibility and make the office successful in ways beyond complaint reduction. In situations where the employees were represented by a union, ombudsmen were found to act as an early warning system for management and an effective mediator by labor. The article concludes with an outline on creating an effective Ombudsman office. Full Article On Westlaw: 13 OHSJDR 549 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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