2013 Disputing Featured Blog Posts on Mediate.com

Disputing has been a Featured Blog on Mediate.com since 2009. We are pleased to share our Mediate.com featured blog posts of 2013 with you here:

• Increasing Legalism in International Commercial Arbitration Recent years have seen an increasing amount of criticism of international commercial arbitration, primarily because of concerns about excessive legalism and the attendant increase in the amount of time and money spent on the dispute resolution process. The common assumption is that international commercial arbitration has changed, and not for the better.
• The Promise of International Commercial Mediation Although international commercial arbitration has long been the preferred means of resolving cross-border business disputes, the international corporate community has become increasingly concerned about increasing costs, delays and procedural formalities. As a result, parties are looking for other means of resolving cross-border business disputes.
• The Federalization of Consumer Arbitration: Possible Solutions Over the past fifteen to twenty years, businesses dramatically increased the use of arbitration clauses in contracts with consumers. Although commentators criticize the use of arbitration to resolve consumer disputes because arbitration lacks the due process protections inherent in traditional litigation, efforts to regulate or eliminate the use of arbitration in this context have failed miserably.
• Nevada Supreme Court Protects Confidentiality of Foreclosure Records Last week, the Nevada Supreme Court rejected a non-profit organization’s request to examine records created as part of the state’s Foreclosure Mediation Program. Non-profit group Civil Rights for Seniors reportedly sought the records using the Nevada Public Records Act.
• Med-Arb and the Legalization of Alternative Dispute Resolution Use of Med-Arb, a dispute resolution process incorporating both mediation and arbitration, is on the rise. Much of the recent interest in Med-Arb stems from the growing similarity between arbitration and litigation, and a resulting decline in Arbitration’s popularity. The formalization of mediation and arbitration provides incentives for combining the two and using Med-Arb to “correct” for the legalization of these ADR processes.
• Consistently Inconsistent: The Need for Predictability in Awards In investment treaty arbitrations, the stakes are high. It is not uncommon for claims to be asserted for hundreds of millions of dollars, and for the costs to resolve such disputes to run into the millions of dollars. Despite the substantial sums involved in resolving such disputes, there exists no uniform practice on awarding costs and fees in investment treaty arbitrations.
• Court Orders Local Firefighters to Arbitrate Benefits Dispute with City Texas’ Fourth District in San Antonio has held that an arbitration provision included in a collective bargaining agreement (“CBA”) requires a local firefighter’s union to engage in arbitration over a health insurance benefits dispute.
• Online Dispute Resolution (ODR): What is it, and is it the Way Forward? This article provides a concise explanation of the notion of “dispute resolution” in cyberspace. It reviews some of the recent studies on the use of Online Dispute Resolution (ODR), especially the use of e-negotiation, e-mediation and e-arbitration, considers the issues concerning the intricacies of settling and resolving disputes in cyberspace and concludes that the idea of banishing offline dispute settlement and dispute resolution methods — in the near future — is extremely unlikely ever to come true.
• The Not-So-Effective Vindication Decision This article provides commentary on the Supreme Court’s decision relating to classwide waivers in arbitration clauses in American Express Co. v. Italian Colors Restaurant, and immediate reception of the Court’s decision by the Second Circuit Court of Appeals. In one of the most closely-watched classwide arbitration cases on the 2012-13 docket, the Supreme Court in Italian Colors Restaurant was asked whether the “effective vindication rule” required access to class arbitration in federal antitrust litigation where an individual plaintiff’s claim was too small to be litigated separately. In a 5-3 decision (with Justice Sotomayor not participating) a divided Court led by its conservative wing responded with a resounding “no.”
• Court-Connected Mediation and Minorities After years of experimentation with the use of alternative dispute mechanisms in a variety of contexts, a new era began in 1988 when Florida and Texas became the first states to adopt legislation that authorized trial judges to order civil cases to mediation. Over the past 25 years, court-connected mediation has grown exponentially.
• NFL and Players Association Agree to Use a Third Party Arbitrator Following Positive HGH Tests A number of Major League Baseball players have faced suspension in recent months over alleged Human Growth Hormone (“HGH”) use. The situation has apparently led other sports to more closely examine their own HGH policies.
• Sticky Arbitration Clauses We present the results of the first empirical study of the extent to which businesses have switched to arbitration after AT&T Mobility LLC v. Concepcion. After the Supreme Court’s decision in Concepcion, commentators predicted that every business soon would use an arbitration clause, coupled with a class arbitration waiver, in their standard form contracts to avoid the risk of class actions. We examine two samples of franchise agreements: one sample in which we track changes in arbitration clauses since 1999, and a broader sample focusing on changes since 2011, immediately before Concepcion was decided.
• Fifth Circuit States Terms of Prior Agreements Were Not Incorporated Into Master Settlement Agreement The United States Fifth Circuit Court of Appeals has held that the terms of two parties’ Merger and Cooperation Agreements were not incorporated into a Master Settlement Agreement entered into by only one of the parties. In Alford v. Kuhlman Electric Corporation, No. 11-60728, (5th Cir. May 24, 2013), BorgWarner, Inc. purchased Kuhlman Corporation (“Kuhlman”) and all the company’s subsidiaries, including Kuhlman Electric Corporation (“KEC”).
• Is Adjudication a Public Good? University of Kansas School of Law Professor Stephen J. Ware has published Is Adjudication a Public Good? ‘Overcrowded Courts’ and the Private Sector Alternative of Arbitration, 14 Cardozo J. Conflict Resol. 899 (2013). In his article, Professor Ware discusses user fees and the role arbitration may play in easing the overcrowding often found in courts across the United States.
• Dispute Systems Design: A Comparative Study of India, Israel, and California Janet Martinez, Senior Lecturer in Law and Director of the Gould Negotiation and Mediation Program at Stanford Law School, Sheila Purcell, Director and Clinical Professor of the Center for Negotiation and Dispute Resolution at the University of California Hastings College of the Law, Hagit Shaked-Gvili, and Justice Mohan Mehta, have authored a thoughtful research paper that compares alternative dispute resolution mechanisms in three very different legal systems.
• Supreme Court Upholds Agreement That Bans Class Arbitration Despite Costs Yesterday, the United States Supreme Court issued a decision in American Express Corp. v. Italian Colors Restaurant, et al., No. 12-133, (June 20, 2013). The appeal from the United States Court of Appeals for the Second Circuit addressed whether the Federal Arbitration Act (FAA) allows a court to invalidate an arbitration agreement that does not permit class arbitration of a federal law claim.
• Healthcare Collaboration: The Experience at One Hospital At Cleveland Clinic, a patient was asked to keep a journal of all the caregivers she saw over her five-day stay. She noted eight doctors, 60 nurses and so many others she lost track. The journal didn’t even track staff from non-clinical areas – food services, parking or billing. A May 2013 Harvard Business Review article by James I. Merlino and Ananth Raman reported on the Cleveland Clinic’s effort to get everyone in the organization to start thinking like a caregiver.
• Arbitration and Access to Justice: Economic Analysis Mandatory arbitration clauses in consumer contracts are widely regarded as problematic because they limit consumer’s access to judicial forums, to fair procedures, and potentially to any kind of remedy. But rather than looking at consumers as a group, I examine which sub groups of consumers are affected by this limitation more than others.
• Concerted Action Includes Concerted Dispute Resolution As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end.
• Martha Stewart Living Ordered to Mediate Dispute With Macy’s and J.C. Penney Mediation is in the news again.  Last week, a New York judge ordered a dispute between Macy’s, Inc., J.C. Penney Co., and Martha Stewart Living to mediation.  The lawsuit itself reportedly arose after New York-based Martha Stewart Living signed a contract with Plano-based J.C. Penney to
  open a Martha Stewart mini shop in many of the retailer’s stores.
• Fifth Circuit Upholds Arbitrator’s Decision in Employment Dispute The United States Fifth Circuit Court of Appeals has affirmed a lower court’s order to confirm an arbitrator’s decision in an employment dispute. In Haag v. Infrasource Services, Inc., No. 12-60159, (5th Cir. February 20, 2013), an employee, Fred Haag, was terminated from his position with Infrasource Services, Inc. for alleged gross misconduct.
• Core Concerns – Why are They Important? The power of the core concerns comes from the fact that they can be used as both a lens to understand the emotional experience of each party and as a lever to stimulate positive emotions in yourself and in others.” Source: Beyond Reason: Using Emotions as You Negotiate by Roger Fisher and Daniel Shapiro.
• Burnout in Healthcare Health care has always been a stressful profession. Think high-stakes work, too many patients, overwhelmed employees. It all adds up to lots of potential conflict, and that’s bad news for patient care, safety, and satisfaction. Now, throw health reform changes linking reimbursement to quality and patient perception of care metrics into the mix and the implications are clear: Managers must help employees handle conflicts productively. If not, the organization may not survive.

Please stay tuned to Disputing for more 2013 year-end highlights!