Arbitration: Award Vacated Due To Arbitrator’s Misconduct
Arbitration: Arbitration Award Unenforceable
Arbitration: Arbitration Provision Did Not Comply With Statute
Arbitration: Indian Tribe Did Not Waive Its Sovereign Immunity By Agreeing To Arbitrate
Ombudsman: McDonald's Corporation’s Ombudsman Program
ADR Online: Negotiation Styles In Mediation
ADR Online: Mediate Away The Millennium Bug
ADR Online: The ADA Mediation Standards Work Group Is Pleased To ADR Online: Draft Version Of The Mediation Standards Is Available To The Public For Comment

Arbitration: Award Vacated Due To Arbitrator’s Misconduct
Floyd County Board of Education v. EUA Cogenex Corp. (E.D.Ky.  9/1/98)

Floyd county successfully brought suit to vacate an arbitration award because of the arbitrator’s refusal to postpone the proceedings.  Floyd county was precluded by statute to act without a quorum and was unable to participate in the arbitration beyond requesting a postponement which was denied.  The court, in vacating the award, held that denying the motion to postpone amounted to misconduct as Floyd county was unable to present any defense.
[Full Decision On Westlaw: 1998 WL 559636]

Arbitration: Arbitration Award Unenforceable
Melton v. Oy Nautor Ab (9th Cir. 9/4/98)
*Unpublished Disposition

Melton received an arbitration award for $400,000 against Oy, a Finnish yacht manufacturer, and sought to have the award enforced under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (9 U.S.C. § 201).  The court ruled that because Melton had not raised the argument that the Convention precluded application of forum non conveniens in the district court, that argument was waived.  Thus, the court applied forum non conveniens, stating that Finland was an adequate alternative forum and that the district court did not abuse its discretion in citing public and private interests in favor of dismissal.
[Full Decision On Westlaw: 1998 WL 613798]

Arbitration: Arbitration Provision Did Not Comply With Statute
City of Cut Bank, State of Montana v. Tom Patrick Construction, Inc.  (MT 9/3/98)
* Opinion has not been released for publication and is subject to revision or withdrawal

Tom Patrick moved to compel arbitration after Cut Bank refused to make final payments and surrender the construction company’s bonds.  The lower court determined that the contract involved interstate commerce and was subject to the Federal Arbitration Act.  The Montana Supreme Court reversed in concluding that the contract did not involve interstate commerce because the parties and the construction were all located in Montana.  The court also rejected Patrick’s claim that there was a valid arbitration agreement.  In citing statutory law which required that arbitration clauses must be typed in underlined capital letters on the first page of the contract, the court held that the clause failed to meet these standards and was unenforceable.
[Full Decision On Westlaw: 1998 WL 563569]

Arbitration: Indian Tribe Did Not Waive Its Sovereign Immunity By Agreeing To
Arbitrate
Cavello v. Yankton Sioux Tribe  (S.D. 9/9/98)

James Cavello was employed by the Yankton Tribe to manage the Fort Randall Casino.  The two parties agreed to the terms of the contract orally, but did not ratify the agreement.  The Tribe subsequently fired Cavello.  Cavello sought arbitration claiming the Tribe owed him his unpaid salary.  The Tribe is governed by a General Council, which has ultimate power to make decisions.  Tribal Counsel Chairman, Steven Cournoyer agreed to arbitrate with Cavello, but did not obtain the consent of the counsel.  The arbitrator ruled in favor of Cavello.  After an unsuccessful attempt to have the award confirmed, Cavello filed suit in South Dakota circuit court.  The trial court granted summary judgment for the Tribe holding that the suit was barred by sovereign immunity.  The Supreme Court of South Dakota held that the suit was barred by sovereign immunity and rejected Cavello’s claim that the Tribe had waived its sovereign immunity by agreeing to arbitration.
[Full Decision On Westlaw: 1998 WL 574418]

Ombudsman: McDonald's Corporation’s Ombudsman Program
Nibeel v. McDonald’s Corp. (N.D.Ill. 8/27/98)

Although only incidental to the case, McDonald’s developed an Ombudsman program in order to resolve disputes between the corporation and its franchisees.  The McDonald’s Ombudsman is charged with investigating complaints made by franchise owners and issuing a binding recommendation, subject to the President’s veto, on an appropriate course of action.  Nibeel, who owned four McDonald’s restaurants, challenged McDonald’s decision to deny him a fifth store, which was to be opened nearby.  The Ombudsman’s decision to award Nibeel the new store was vetoed and Nibeel brought a seven count suit which McDonald’s defeated in summary judgment.
[Full Decision On Westlaw: 1998 WL 547286]

ADR Online: Negotiation Styles In Mediation
By Stephen Marsh

This article outlines five common styles of negotiation used in mediation proceedings.  The article also explains how to deal with each style effectively.

Details: http://adrr.com/adr5/mediate.htm

ADR Online: Mediate Away The Millennium Bug
By Sandra A. Sellers

As the millennium approaches, dissatisfied-customer suits against high-tech companies have blossomed into class actions over fears that software and computer chips unable to recognize and process the date "2000" will cause essential systems to malfunction.

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

ADR Online: Draft Version Of The Mediation Standards Is Available To The Public For Comment

The draft is available on the web site of MIRC (Mediation Information and
Resource Center) at www.mediate.com/articles/ada.cfm.  The Work Group seeks maximum input from the stakeholders and from the mediation community. Instructions for sending comments are noted on the DRAFT.  To be considered by the Work Group, comments should be sent no later than December 1, 1998.

Details: Judith Cohen at accessrs@ix.netcom.com.