Jim Boskey's "The Alternative Newsletter" on line NASD to end mandatory arbitration of employment discrimination SPIDR seeks executive director Oregon Dispute Resolution Commission has new executive director Court decisions Mediation confidentiality - Lawyer not disqualified Arbitrators' punitive damages award upheld Arbitrators' denial of attorney fees in ADEA case upheld No appeal from interlocutory order compelling arbitration

Jim Boskey's "The Alternative Newsletter" on line

"The Alternative Newsletter," edited by James B. Boskey, Professor of Law at Seton Hall Law School, is a comprehensive collection of news, views, events, conferences, and writings about dispute resolution.  It is now on line courtesy of Mediation Information and Resource Center. The URL:  http://www.mediate.com/tan/

NASD to end mandatory arbitration of employment discrimination

The National Association of Securities Dealers, Inc. (NASD) has announced that it will eliminate mandatory arbitration of statutory discrimination claims for registered brokers.  Employees will be able to choose between private arbitration or reserving the right to file a court suit.  The new rule will go into effect one year after SEC approval. [Press Release:  request 297131]

SPIDR seeks executive director

Society of Professionals in Dispute Resolution (SPIDR) is seeking an executive director.  Applications are due no later than 5:00 p.m. Thursday, September 11, 1997. [Vacancy Announcement:  request 297132]

Oregon Dispute Resolution Commission has new executive director

Terry Amsler will be the new executive director of the Oregon Dispute Resolution Commission effective October 1, 1997.  Amsler is now executive director of the San Francisco Community Board Program.  He has more than 20 years of experience in mediation, administration, and legislative work, has taught mediation and conflict resolution at the college level, and has developed a number of unique dispute resolution programs.  Amsler replaces Alice Phalan, ODRC's first exec.  Donna Silverberg served as acting director during the search process.  ODRC is chaired by Willamette University Law Profesor Susan Smith.

Mediation confidentiality - Lawyer not disqualified Barajas v. Oren Realty & Development (Calif Ct Appeals 8/21/97)

California statute requires that statements made and information discussed during a mediation "shall remain confidential."  Plaintiffs' attorney was involved in two lawsuits against the same defendant.  After successfully mediating one of the suits, plaintiffs' attorney became associated as plaintiffs' counsel in the second case.  Defendant persuaded the trial court to have plaintiffs' attorney disqualified.  On appeal, the California Court of Appeals surveyed the many ways "mediation would be stifled" if attorneys were disqualified after participating in a mediation, and reversed the trial court. [Full decision:  request 297133]

Arbitrators' punitive damages award upheld Barnes v. Logan (9th Cir 8/20/97)

In an NASD arbitration between a customer and a registered securities representative, the arbitrators awarded the customer compensatory damages, interest, and punitive damages.  A federal district court affirmed the award.  On appeal, the Ninth Circuit noted that the arbitrators purported to apply California law to the punitive damages issue even though Minnesota law clearly applied.  The court found that the error was "harmless."  Although there was doubt about whether Minnesota would allow punitive damages in such a case, the court found that "we cannot conclude that the arbitrators acted in manifest disregard of Minnesota law." [Full decision:  request 297134]

Arbitrators' denial of attorney fees in ADEA case upheld DiRussa v. Dean Witter Reynolds (2nd Cir 8/5/97)

DiRussa claimed his employer discriminated against him in violation of the Age Discrimination in Employment Act (ADEA), and that claim was arbitrated under NASD procedures.  The arbitrators awarded DiRussa compensatory damages but refused to award attorney fees (claimed to be $249,050.10). Even though attorney fees are automatically awarded in ADEA cases, the Second Circuit held that the arbitrators did not engage in "manifest disregard of the law" because there was no showing that they actually knew of and intentionally disregarded the mandatory nature of ADEA attorney fees.  It seems DiRussa did not communicate to the arbitrators that the ADEA mandated attorney fee awards to prevailing parties. [Full decision:  request 297135]

No appeal from interlocutory order compelling arbitration McCarthy v. Providential Corp (9th Cir 8/20/97)

Senior citizens filed a class action suit claiming Truth in Lending Act violations with regard to their reverse mortgages.  The trial court found that the loan agreements contained arbitration clauses, ordered plaintiffs to arbitrate their claims on an individual basis, and dismissed the complaint.  The Ninth Circuit dismissed the appeal for lack of jurisdiction, on the ground that the trial court's order was interlocutory and not a "final decision."  2:1 decision. [Full decision:  request 297136]

Comment:  The Ninth Circuit's position is followed by the 2nd, 4th, and 5th Circuits; the 6th and 10th Circuits hold to the contrary.

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Recent Developments in Dispute Resolution
Willamette University Dispute Resolution Information Service
http://www.willamette.edu/dis-res/
Editor: Professor Ross Runkel rrunkel@willamette.edu