Arbitration: Forum For Arbitration Unconscionable
Arbitration: Agreement To Arbitrate Under ADA Claim Must Be Knowingly Made
Arbitration: Arbitrator Exceeds Authority In Assessing Costs Of Arbitration
Arbitration: Insurance Company Held To Arbitrator’s Award Without Participating
ADR Online: International Arbitration Law - Validity and Scope of Arbitration Agreement
ADR Online: The Use Of Mediation In Estate Planning - A Preemptive Strike Against Potential Litigation
ADR Online: A Critique Of Mediation - Challenging Misconceptions, Assessing Risks, And Weighing The Advantages

Arbitration: Forum For Arbitration Unconscionable
Brower v. Gateway 2000, Inc. (N.Y.A.D. 8/13/98)

Gateway, a mail order computer company, delivered its computers with a “Standard Terms and Conditions” document enclosed.  The document provided that the terms would become binding after the customer had kept the computer beyond 30 days.  Among the terms was an arbitration clause which stated that all disputes would be arbitrated in Chicago in accordance with the rules of the International Chamber of Commerce (ICC) which is headquartered in France and requires a $2,000 nonrefundable fee for all claims under $50,000.  The court rejected claims that the entire contract was one of adhesion and that the arbitration clause was unconscionable.  Instead, the court invalidated only the ICC forum clause, finding that it was unconscionable in that the excessive cost of arbitrating the dispute would deter consumers from invoking the process.

[Full Decision On Westlaw: 1998 WL 481066]

Kummetz brought an Americans with Disabilities Act (ADA) claim against his former employer, Tech Mold.  Tech Mold claimed that the dispute was subject to arbitration as Kummetz had agreed to the process by acknowledging his acceptance of the company’s Employment Information Booklet which contained the arbitration clause.  The court disagreed and relied on Tech Mold’s Information Booklet Acknowledgment form which made no mention of the arbitration clause contained in the booklet and further provided that “this Booklet in no way constitutes an employment contract....”  Additionally, the court relied on past decisions which stipulated that agreements to arbitrate disputes occurring under the ADA must be knowingly made by the employee and that Kummetz had not explicitly agreed to waive his right to trial because he was not aware of the provision.

[Full Decision On Westlaw: 1988 WL 480900]

Arbitration: Arbitrator Exceeds Authority In Assessing Costs Of Arbitration
City of Philadelphia v. Fraternal Order of Police (Pa. Cmwlth. 8/31/98)

The City and the Fraternal Order of Police (FOP) arbitrated a dispute pursuant to their collective bargaining agreement (CBA).  The issue was the transfer of Lieutenant Frank Powell.  The arbitrator ruled against the city holding that the city had violated the CBA by transferring Lt. Powell without first notifying him.  The arbitrator also assessed the costs of the arbitration to the city.  The city then filed a motion to have the arbitrator’s decision vacated on the grounds that the arbitrator had exceeded his authority in assessing arbitration costs.  The trial court ruled for the FOP and further required the city to pay the reasonable attorney’s fees of the FOP for having to defend the motion to vacate.  The trial court reasoned that it was a bad faith argument for the city to move to vacate an award that it had already agreed the arbitrator would determine.  The appellate court held that the arbitrator exceeded his authority in assessing the arbitration costs because the CBA between the FOP and the city expressly provided that the costs and fees of arbitration will be shared equally between the two sides.  Upon making this ruling, the appellate court ruled that the motion to vacate was not in bad faith.

[Full Decision On Westlaw: 1998 WL 552658]

Arbitration: Insurance Company Held To Arbitrator’s Award Without Participating
Fisher v. Allstate Insurance Company (Wash. 9/3/98)

Kelly Fisher was seriously injured in an accident with Susan Allman.  The accident occurred in northern Idaho.  Fisher had an underinsured motorist (UIM) policy with Allstate with a coverage limit of $25,000.  Fisher sued Allman after Allstate and the Allman’s insurance company refused to tender their policy limits to Fisher.  Fisher also filed suit against Allstate to recover the UIM policy.  Eventually, an arbitration was conducted to settle the matter.  Allstate did not participate in the arbitration although they did have notice of Fisher’s suit.  The arbitrator awarded $236,000 to Fisher.  The trial court confirmed the award as did the Court of Appeals holding an underinsured carrier is bound by the resulting judgment against a tortfeasor when an insurer has notice and an opportunity to intervene.  Allstate attempted to argue that they had only notice of the suit, not the arbitration hearing.  The Supreme Court of Washington affirmed this decision reasoning that Allstate had an opportunity to intervene but failed to do so and further that only notice of the suit was necessary.  Therefore, the court ruled that Allstate should be held to the judgment of the arbitrator.

[Full Decision On Westlaw: 1998 WL 556281]

ADR Online: International Arbitration Law - Validity and Scope of Arbitration Agreement
By Emmanuel Gaillard

A common practice in delaying the process of arbitration is to challenge the validity and scope of an arbitration agreement.  This article outlines methods of combating this problem and validating the arbitration agreement.

Details: http://www.ljx.com/practice/arbitration/0804itarb.html

ADR Online: The Use Of Mediation In Estate Planning - A Preemptive Strike Against Potential Litigation
By John A. Gromala

This article focuses on the family dynamics involved in planning and preparing wills and trusts.  The author advocates the use of a mediator during the process to help resolve any conflicts within the family during the planning stages rather than at the execution of the estate.

Details: http://adrr.com/adr2/estate.htm

ADR Online: A Critique Of Mediation - Challenging Misconceptions, Assessing Risks,
                      And Weighing The Advantages
By Robert D. Benjamin

This article discusses the common misconceptions of mediation and balances the risks vs. the benefits.  The topics of clients concerns, the role of the lawyer, and the lawyers responsibilities within mediation are also discussed.

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