In a recent case, the United States District Court for the District of Colorado found online arbitration clause enforceable and granted Defendants’ Motion to Compel Arbitration. In Vernon v. Qwest Communs. Int’l, Inc., 09-cv-01840-RBJ-CBS (D. Col. Mar. 8, 2012) Plaintiffs are Qwest internet service customers who asserted claims on behalf of a multi-state consumer class action, alleging that Qwest’s imposition of a $200 early termination fee was improper. Qwest moved to compel arbitration pursuant to the parties’ Subscriber Agreement and its mandatory arbitration clause. The relevant part of the Subscriber Agreement informs subscribers that: BY ENROLLING IN, ACTIVATING, USING OR PAYING FOR THE SERVICE AND/OR EQUIPMENT, FAILING TO RETURN THE EQUIPMENT AND CANCEL SERVICE WITHIN 30 DAYS AFTER ORDERING SERVICE OR EQUIPMENT, OR INSTALLING THE EQUIPMENT YOU AFFIRM THAT YOU UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, EVEN IF YOU CHOOSE NOT TO READ IT. FURTHER, YOU AFFIRM THAT YOU UNDERSTAND AND AGREE TO THE PRICES, CHARGES, AND OTHER TERMS AND CONDITIONS QUOTED TO YOU DURING THE ORDERING PROCESS AND ON www.qwest.com/legal/highspeedinternetsubscribers agreement/ and www.qwest.com/legal, ALL OF WHICH ARE INCORPORATED BY REFERENCE. The Subscriber Agreement expressly provides that all disputes other than those related solely to collection of debt shall be resolved through individual arbitration or proceedings in small claims court: 17. Dispute Resolution and Arbitration; Governing Law. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. (a) Arbitration Terms. You agree that any dispute or claim arising out of or relating to the Services, Equipment, Software, or this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration. The sole exceptions to arbitration are that either party may pursue claims: (1) in small claims court that are within the scope of its jurisdiction, provided the matter remains in such court and advances only individual (non-class, non-representative, non-consolidated) claims; and (2) in court if they relate solely to the collection of any debts you owe to Qwest. (i) Arbitration Procedures. . . . The arbitration shall be conducted by the American Arbitration Association (“AAA”). The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, shall govern the arbitration of the dispute. Colorado state law, without regard to choice of law principles, shall otherwise govern and apply to any and all claims or disputes . . . . Arbitration is final and binding. Any arbitration shall be confidential and neither you nor Qwest may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. The arbitrator may award any relief or damages that a court could award, except an arbitrator may not award relief in excess of or contrary to what this Agreement provides. Judgment on any arbitration award may be entered in any court having jurisdiction. (ii) Costs of Arbitration. The party requesting arbitration must pay the applicable AAA filing fee, except that if you are an individual using the Services for household or personal use and you initiate arbitration against Qwest: (1) you must pay one-half the arbitrator’s fee up to a maximum of $125 if your claim does not exceed $10,000; (2) you must pay one-half the arbitrator’s fees up to a maximum of $375 if your claim is more than $10,000 but less than $75,000; and (3) you must pay an Administrative Fee in accordance with the AAA’s Commercial Fee Schedule if your claim exceeds $75,000, or if your claim is non-monetary. Except as provided in the preceding sentence, each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. * * * (b) Waiver of Jury and Class Action. By this Agreement, both you and Qwest are waiving rights to litigate claims or disputes in court (except small claims court as set forth in paragraph (a) above). Both you and Qwest also waive the right to a jury trial on your respective claims, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity. Plaintiffs argued, inter alia, that the arbitration clause was illusory because Qwest reserved the right to revise the Subscriber Agreement at any time. The court held that the arbitration agreement was not illusory because the changes by Qwest -the drafting party in the Subscriber Agreement- were conditioned upon prior notice to the subscribers, giving subscribers the option to reject those changes by cancelling their service.

by Holly Hayes I recently discovered the book Bioethics Mediation: A Guide to Shaping Shared Solutions by Nancy Neveloff Dubler and Carol B. Liebman. The book: offers stories about patients, families, and health care providers enmeshed in conflict as they wrestle with decisions about life and death. It provides guidance for those charged with supporting the patient’s traditional and religious commitments and personal wishes. Conflicts come in different guises, and the key to successful resolution is early identification and intervention. Every bioethics mediator needs to be prepared with skills to listen, “level the playing field,” identify individual interests, explore options, and help craft a “principled resolution” — a consensus that identifies a plan aligned with accepted ethical principles, legal stipulations, and moral rules and that charts a clear course of future intervention. Nancy Neveloff Dubler is a Senior Associate at the Montefiore-Einstein Center for Bioethics and Professor Emerita of Bioethics at the Albert Einstein College of Medicine. Carol B. Liebman is Clinical Professor at Columbia Law School. The book includes actual role plays with expert commentaries, tools and detailed case analysis. We welcome your thoughts on bioethics mediation in healthcare. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

The Chartered Institute of Arbitrators (CIArb) is pleased to announce the appointment of Anthony Abrahams TD DL MBA as the new CIArb Director General (Chief Executive). Mr Abrahams will start at CIArb’s Executive offices in Bloomsbury Square, London on 10 April 2012 and will replace Michael Forbes Smith MCIArb. Mr Smith, who led CIArb since February 2006, left the Institute on 23 March and will retire as Director General of CIArb on 6 April. Mr Abrahams is currently Chief Executive of Charter Chambers in London, prior to which he was Group Managing Director of Kain Knight Group plc. Qualified as a solicitor and specialising in civil litigation, he has considerable hands-on experience in legal practice management which he has reinforced academically, gaining an MBA with distinction from Nottingham Law School. He also sits as a Deputy District Judge. Mr Abrahams says, “I am delighted to have this opportunity to lead CIArb. The Institute is at the forefront of alternative dispute resolution and our members have a vital role to play in the field of ADR. I look forward to building on the excellent work CIArb and its dedicated team of staff have already done.” Mr Abrahams’ legal background has been complemented and enhanced with leadership and organisational skills acquired in the Territorial Army where he attained the rank of Colonel. He was mobilised in 2006 to undertake an operational tour in Iraq working to develop the rule of law and dealing with human rights issues there. He is involved with a number of military charities caring for the needs of service personnel and their families as well as St John Ambulance Brigade. Married with three children Mr Abrahams enjoys supporting Northampton Saints rugby team with his family and has recently taken up sailing. Nicki Alvey, currently Director of Membership and Marketing, will be Acting Director General until Mr Abrahams takes up his post. John Wright FCIArb, Chairman of CIArb’s Board of Trustees says, “I look forward to welcoming Anthony Abrahams to CIArb. His background in dispute resolution and his more recent experience at Chief Executive level will stand him in excellent stead to lead the Institute forward. I would also like to take this opportunity to thank Michael Forbes Smith for all his hard work over the last 6 years, a period during which CIArb has advanced considerably under his leadership.”

The International Chamber of Commerce (ICC) will be hosting a training course in international contracts in Paris, on June 11-14, 2012. The training will focus on the main problems arising out of international contracts and will include conflict resolution guidance. The Brochure is available here.