One last time!! before the door closes on the opportunity to have your picture in the WLALA Tribute book and to share two tables with your fellow neutrals at the WLALA annual Installation Dinner and Gala.
I have three more places at the table and on that ad. I need your check for $175 and a .jpg by Friday to put you in it! Please, let's show WLALA how eager we are to cross-refer business.
This is a particularly good year to join us as we begin the first WLALA ADR initiative in its nearly 100 year history.
ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession. We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years. My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.
The ADR pipeline is full of competent -- indeed glorious -- women. Yet the statistics at the top remain grim.
Chopped Liver?
Why is your ADR practice not everything that Tony Piazza's or Eric Green's or even Steve Cerveris' is? Research shows that both men and women have negative implicit attitudes toward women in leadership and authority positions. The good news is that women are slightly less pre-disposed than are men to picture a man in a suit when they're looking for access to money and power. I've had at least half a dozen women commercial litigators look straight at me and say "I don't know any women mediators."
Huh????
Followed by, "well their names are never on the lists [circulated in my firm]."
Women, with their slightly reduced inability to "see" women in authority positions, are our foot in the door. And the new WLALA ADR Committee is our opportunity to open that door wide.
As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA. "The market has spoken. Commercial lawyers just don't hire women and minorities."
What????
We're advocates, for goodness sakes. When we come into town we have to register our skills of persuasion with local law enforcement authorities. We're change agents, opinion makers, powerful holders of the keys to the kingdom.
And the market has spoken? We make the market!
This year's ADR Committee is dedicated to closing the gaping void between men and women neutrals. We're not going to ask for special treatment, picket the LASC's ADR office, pass new laws or burn our ADR certificates, Super Lawyer plaques, Ivy League diplomas, or our bras (not at this age!).
We're going to market like no one has ever marketed before and we're going to do so as a group so that we don't each hesitate, as we women tend to do, to promote ourselves and our services.
2010 and 2011 will be the years in which top women will refer to other top women. 2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top). 2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.
How?
Marketing. Proctor and Gamble does not say, "well, the market doesn't want a new improved laundry detergent." P&G asks "how?" not "can we?" And it certainly never says "we give up, the market has spoken."
We're putting our first stake in the ground on September 16 at the WLALA Gala. There's no event more important for women neutrals to attend this year.
Our current attendees will appear in two full-page ads in the Tribute Book and two color flyers to be distributed at the dinner.
To date those women are Eleanor Barr, Joan Kessler, Lynne Bassis, Katherine Edwards, Laurel Kaufer, Linda Klibanow, Denise Madigan, Stephanie Maloney, Deborah Rothman, Jan Frankel Schau, Gretchen Taylor, Caroline Vincent, Diane Wayne, Linda Bulmash, Lisa Gates (my She Negotiates business partner), Kathy Balin, and Erica Bristol.
We need three more women neutrals to fill table two. If you want to sit at another table, ask a woman litigator to change places with you while whispering "cross-refer" in her ear. The key is that you'll be there to network. You'll show your support to WLALA by showing up and WLALA women (among the most entrepreneurial in the Bar) will see your beautiful face and panel affiliation or business name in the Tribute Book while enduring the inevitably tedious speeches at these events.
Do you want to double your income by 2012? If we've lasted this long in a profession that was solidly male when so many of us were in high school, we can close this gap by coming together and just doing it.
And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.
Our first event will be an afternoon on arbitration in October with CPR CEO Kathy Bryan and other powerful women attorneys, GC's and CEO's who arbitrate, either as advocates, as clients or as arbitrators. The panel will be moderated by complex-commercial AAA arbitrator Deborah Rothman.
Shock me! Let's fill Table Three!!
I look forward to hearing from you and to kicking the last pitiful shards out of that darn glass ceiling.
Thanks to the SCOTUS Blog for the following resources on the upcoming Kagan hearings. Follow SCOTUS Blog all week for commentary.
Why should negotiators be interested in the composition of the Supreme Court? Because the freedom to negotiate requires a strong rule of law culture. And because everything we negotiate assumes the enforcement of certain agreements and non-enforcement of others, of particular interest to negotiators and ADR practitioners - arbitration agreements.
A minor Supreme Court victory this morning in an employment-related arbitration case has left the pro-arbitration camp hopeful that the justices will see things their way in a hotly anticipated consumer-related legal battle the court will hear next term.
This morning's ruling in Rent-A-Center West Inc. v. Jackson saw the court's conservative wing rule in favor of Rent-A-Center's push to have an arbitrator, and not a court, rule on the enforceability of an arbitration agreement between the company and an employee who'd filed an employment discrimination suit. In so holding, the five-justice majority reinstated a ruling from a Nevada federal court judge that had been reversed by the U.S. Court of Appeals for the Ninth Circuit.
Hawkins and Rent-A-Center's attorney Carter Phillips of Sidley Austin may be reading the tea leaves correctly, but the Court's hyper-technical decision-dodging suggests the absence of a plurality on the real issue presented - whether the Court or the arbitrator should be making the decision whether the arbitration agreement is unconscionable or not.
After three years of negotiation and general ADR blogging, I feel the need to narrow my Negotiation Blog posts and expand my IP ADR Blog posts to the type of work that consumed the vast bulk of my 25-year litigation and trial career – general commercial litigation.
I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.
This decision is made more interesting by the recent Parada decision (.pdf) (covered here and here) where the drafter's failure to attach the JAMS arbitration rules cited in the agreement was one of the reasons the Court concluded the arbitration clause was substantively unconscionable. I think it's safe to say at this point in the development of California law on these issues that it's not malpractice for an attorney to fail to draft an enforceable arbitration clause. But as the opinions multiply, you can be sure some employer will be looking around for someone to name its legal counsel as the source of his discontent, blame its law firm for having to bear the expense of litigation, and claim damages as a result.
The best protection for drafters of arbitration clauses (particularly in California where the Courts remain suspicious of adhesion arbitration contracts) is to be familiar with all the case law on the topic in the last five years; to avoid any provision the Courts have used to tip the "sliding scale" in favor of non-enforcement and include those provisions which favorably incline the courts to enforce the clauses.
My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. [1]
asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.
My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games[8] he did – hop scotch, jump rope and ring-around the rosy.
Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'. Hybrids will give way to fully electric (and perhaps hemp-powered)[9] vehicles (effective or defective) and though electricity will continue to be generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]
Law, politics, society and culture also exist in the 200-year present of conflict resolution.[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later? Or do they weave our future together?
The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,
The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.
Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own business magazine - ForbesWoman (my part in it here). And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia. See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.
My grandparents', parents' and step-children's 20th Century was dominated by genocide[14] on a scale and a technological precision unimaginable to our earlier forebears. Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism. We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.
Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations. And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. [15]
With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which
provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.
How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here).
The Most Effective Conflict Resolution Technology is the Oldest
One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”
As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor. According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry. When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat.
We don't "dis" lawyers here at the Negotiation Blog. We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind. Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyerswas not an insult. In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.
The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code.
For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones. [24]
Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table. See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.
I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e.,
shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.
Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]
Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week. The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").
18th Century Dispute Resolution Technology: The (Inevitably Polarizing) Adversarial System
It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them." If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.
As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them." We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.
The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs." Nor could he any longer be "outlawed or exciled or otherwise destroyed." Nor could the King "pass upon him or condemn him."
English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments. Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog). The motion?
Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails. As Ken wrote in Conflict Revolution:
Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.
Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.
All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.
As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.
These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus.
Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named: Martin Luther King, Jr. - the arc of history is long, but it bends toward justice.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.
[16] Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.
[17] The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.
Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."
“When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “
[22] Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.
The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.
(Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.
Over at Disputing with at least one bill that would mandate mediation (to irritate mediation purists who learned this catechism at their ADR parents' knees- "mediation is a voluntary process . . . ")
I recently reported with surprise the Second Appellate District's Burlage opinion in which it refused to vacate the trial court's vacation of a $1.5 million arbitration award based upon the arbitrator's rejection of evidence that the damages sought were not in fact suffered by claimants.
At the Federal Bar Association luncheon today I sat at attorney Wendy Lascher's table to hear the Dean of the new U.C. Law School at Irvine, Erwin Chemerinsky speak about the new Supreme Court term. Wendy represented the losing party in Burlage and was awaiting word from the Court of Appeal on her Petition for Rehearing, which was granted this afternoon.
My further thoughts below, which are 180 degrees from my initial thoughts. (As a friend recently said to me "I said THAT? about THAT issue? Did you hit the 'refresh' button?")
The question presented to the arbitrator was whether evidence of a post-escrow remedy was admissible in light of the (apparent) rule of law that damages should be measured as of the date escrow closed. Because the purchaser of the property purchased a lot line adjustment eliminating the encroachment subject of the arbitration two years after the close of escrow, the arbitrator excluded the evidence as irrelevant to the issue of damages. The trial court vacated the arbitration award under section 1286.2, subdivision (a)(5), "which requires vacation of an arbitration award when a party's rights are 'substantially prejudiced' by the arbitrator's refusal to hear 'evidence material to the controversy.'" Two members of the three-member appellate panel affirmed.
When I spoke with attorney Lascher over lunch yesterday, she noted that questions such as "substantial prejudice" would require the trial court to review the entire record. Determining that substantial prejudice existed would also depend upon the application of the law to the facts. How, for instance, could there be "substantial prejudice" if the arbitrator was right about the law, i.e., that because the damages were required to be measured at the date escrow closed, evidence of a post-escrow cure were irrelevant. The appellate court opinion doesn't mention this issue, let alone resolve it.
Since the Court can't review the decision based upon the law or the findings of fact, the arbitrator could have permitted the evidence to be introduced and granted the identical relief. Presto, the arbitration award would have been made bullet-proof. I understand from reading the rehearing briefs that the arbitrator knew the "facts" that the excluded evidence would have proven, so it's highly unlikely that permitting the facts to come into evidence would have changed the result.
The Lascher rehearing brief suggests that the Burlage holding would incentivize arbitrators to admit all proffered testimony and documents into evidence to insure their awards are not made subject to judicial review, thereby making arbitration lengthier and more burdensome. Lascher also suggests that there is little to disincentivize losing parties from seeking to vacate arbitration awards whenever any evidence is excluded at the arbitration. Both of these results would, she argues, further proceduralize and undermine the utility of arbitration as an alternative to litigation.
She may well convince me that my own initial analysis of the case was wrong. We'll see whether the Court of Appeal rethinks this one. In any event, I believe we can expect to see this one before the California Supreme Court at day's end.
The American Arbitration Association (AAA), the world’s leading provider of conflict management and dispute resolution services, has unveiled new services for parties involved in business-to-business, business-to-consumer, and employer-employee disputes. AAA’s Non-Binding Dispute Resolution Services provide an appropriate alternative to pre-dispute binding options.
The non-binding suite of services includes both AAA’s traditional mediation services and a new non-binding arbitration service. Non-binding arbitration can be particularly attractive to parties who want to put their case together to see its merit and foster settlement. Even if a full settlement is not reached, non-binding arbitration can help parties reduce their issues in dispute and prepare them better to resolve remaining issues. In addition, AAA staff facilitators stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand.
“Today, more than ever, it is critical for parties to resolve disagreements in a cost-effective and timely manner, all the while protecting valuable relationships. With AAA’s Non-Binding Dispute Resolution Services, those who avail themselves of our services can rest assured that they have the resources and flexibility they need to handle potential disputes,” said William K. Slate II, President and Chief Executive Officer of the AAA.
As part of the non-binding suite of services, new sets of Non-Binding Arbitration Rules have been created for business and consumer disputes as well as for employment disputes. A new resource, titled a Guide to Drafting Non-Binding Arbitration and Mediation Contract Clauses, has also been created to assist in writing these new clauses into contracts.
The AAA’s Non-Binding Dispute Resolution Services offer smart, effective solutions that provide:
Viable contractual alternatives to binding options like litigation
The chance to preserve relationships with partners and customers
Streamlined process and low costs
Non-Binding Suite of Services in Detail
Mediation enables parties to arrive at a settlement solution of their own making with the assistance of a neutral facilitator. This process can be valuable when the parties are willing to be flexible in their positions, when time and other resources are precious and when parties seek to have greater control over the outcomes.
Non-binding arbitration provides the parties with a hearing on documents or an informal hearing on the dispute’s merits but without the finality of a binding decision. Non-binding arbitration can be especially valuable for less complex business-to-business, business-to-consumer or employer-employee disputes where the parties may be too far apart in their viewpoints to mediate or in need of an evaluation of their respective positions.
The AAA has a panel of arbitrators ready to serve on non-binding business, consumer, and employment arbitrations. The panelists are distinguished by their level and breadth of experience in arbitration, the law and their industry knowledge, which ranges from technology, insurance, and consumer products to financial services, healthcare, ERISA, pension and benefits matters, and more. The panel of arbitrators also includes former federal and state judges and attorneys experienced in personal injury, and handling general civil disputes.
To view information on the AAA Non-Binding Dispute Resolution Services fees, please view the following links:
To find more information on these innovative non-binding solutions, go to: http://www.adr.org.
About the American Arbitration Association
The global leader in conflict management since 1926, the American Arbitration Association is a not-for-profit, public service organization committed to the resolution of disputes through the use of arbitration, mediation, conciliation, negotiation, democratic elections and other voluntary procedures. In 2007, nearly 128,000 cases were filed with the Association in a full range of matters including commercial, construction, labor, employment, insurance, international and claims program disputes. Through 30 offices in the United States, Ireland, Mexico, and Singapore, the AAA provides a forum for the hearing of disputes, rules and procedures and a roster of impartial experts to resolve cases.
Before I begin to get hate mail from attorneys about this series, let me say that it is meant to sound the alarm, raise red flags, and make attorneys overly cautious so that our clients wouldn't even ever think of suing us for malpractice.
I don't mean to suggest here that drafting an arbitration clause a Court refuses to enforce or to apply to a given claim constitutes malpractice. The way the Courts are dealing with arbitration clauses these days, it's probably not outside the standard of care to fail to satisfy their passing fancies on scope and unconscionability.
I do, however, WANT TO DISCOURAGE ALL LAWYERS FROM USING BOILER PLATE ARBITRATION CLAUSES which is why I'm alerting you to yesterday's opinion by the Fifth Circuit Court of Appeal refusing to apply Halliburton's employment arbitration provision to a sexual assault claim.
Here's the clause.
You understand that the Dispute Resolution Program requires, as its last step, that any and all claims that you might have against Employer related to your employment . . . must be submitted to binding arbitration instead of to the court system.
Pretty broad, but not, according to Jones v. Halliburton, broad enough to include a sexual assault claim that occurred in worker housing. With one Justice dissenting, the Court was careful to limit is opinion strictly to the facts of the case before it. Here's the holding:
The one consensus emerging from [our] analysis is that it is fact-specific, and concerns an issue about which courts disagree. When deciding whether a claim falls within the scope of an arbitration agreement, courts “focus on factual allegations in the complaint rather than the legal causes of action asserted”. Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 344 (5th Cir. 2004) .Here, the allegations are as follows: (1) Jones was sexually assaulted by several Halliburton/KBR employees in her bedroom, after-hours, (2) while she was offduty, (3) following a social gathering outside of her barracks, (4) which was some distance from where she worked, (5) at which social gathering several co-workers had been drinking (which, notably, at the time was only allowed in “non-work” spaces).
* * *
Under these circumstances, the outer limits of the “related to” language of the arbitration provision have been tested, and breached. Halliburton/KBR essentially asks this court to read the arbitration provision so broadly as to encompass any claim related to Jones’ employer, or any incident that happened during her employment, but that is not the language of the contract. We do not hold that, as a matter of law, sexual-assault allegations can never “relate to” someone’s employment. For this action, however, Jones’ allegations do not “touch matters” related to her employment, let alone have a “significant relationship” to her employment contract.
N.B. Review the case law; forecast the types of claims that might be made against your client. Tell the client there's no way you can provide it with any absolute assurances that the arbitration clause will be enforceable in every given situation. Say that in writing. Do your best. Maintain a great working relationship with your clients and you'll be fine. Just fine.
From Diana Skaggs'
Louisville Divorce Law Journal -
"In browsing [Victoria's ADR blogs] you'll no doubt stumble upon some
information that will make you wonder how you could have practiced law
without it. Subscribe to the feeds and you'll regularly receive some of the
best CLE on the net. I wish it were required reading for all mediators."
I'm an attorney who is currently a Masters Degree candidate in
Mediation and Conflict Studies. I do not have much time to read
blogs. Thanks to the Settle It Now Negotiation Blog, I do not need
to. Your posts possess the perfect blend of thought-provoking
content and practical tools for anyone working in the trenches of
dispute resolution. I look forward to reading the blog because I
know its content will always be highly relevant to the issues I
grapple with, both as an attorney and as a mediator. Thank you for
providing us with such a great free resource. - Juliana Hoyt,
attorney and mediation student, Vermont.
Dear Fabulous Women Neutrals of Los Angeles:
ONE HUNDRED YEARS! of women lawyers - way past time to reach and firmly occupy the higher reaches of the profession. We've been graduating from the nation's law schools in nearly equal numbers with men for more than 20 years. My own U.C. law school class (King Hall, '80) was 50% women thirty years ago.
As a member of the CPR-led Joint Task Force on Diversity, I have heard the verdict of JAMS and the AAA. "The market has spoken. Commercial lawyers just don't hire women and minorities."
2010 and 2011 will be the years in which top women will refer to other top women. 2010 and 2011 will be the years in which we close the income gap not only between men and women neutrals but between men and women lawyers (its 40% at the top). 2010 and 2011 will be the years in which we make a market younger women lawyers will be entering in the next decade and the one after that -- one in which they'll flourish after they grow weary of fighting over interrogatory objections and e-discovery.
And if the $175 is too steep a price during these recessionary times or if you'll be out of town or otherwise engaged on the 16th of September, please let me know that you want to be a member of the new WLALA Committee by return email.
Asher Hawkins
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My 
First and most importantly, I suppose, are the
18th Century Dispute Resolution Technology: The (
Before I begin to get hate mail from attorneys about this series, let me say that it is meant to sound the alarm, raise red flags, and make attorneys overly cautious so that our clients wouldn't even ever think of suing us for malpractice. 