The announcement below is a call for papers for a panel discussion hosted by the Association of American Law Schools (“AALS”): In connection with the 2012 Annual Meeting of the Association of American Law Schools in Washington, D.C., the AALS Section on Alternative Dispute Resolution will be sponsoring a panel discussion on “The Supreme Court and the Future of Arbitration.” Over the past twenty five years, the range of disputes subject to binding arbitration – particularly as a result of pre-dispute arbitration agreements — has grown dramatically. The U.S. Supreme Court has issued a series of arbitration law decisions on such topics as the availability of class arbitration, the preemptive effect of the Federal Arbitration Act (FAA), the scope of judicial review of arbitral awards under the FAA, the enforceability of mandatory pre-dispute arbitration agreements, and the arbitrability of public law claims. These often controversial decisions have had an enormous impact on business, consumers and the workplace and have transformed much of the U.S. economy’s dispute resolution landscape. This program will explore the future of arbitration in light of these Supreme Court cases. The program will include a speaker selected from this Call for Papers. Eligible papers may address any topic related to the future of arbitration. Both essay and article length papers are welcome. The selected author will participate in the Section’s program at the January 4-8, 2012, AALS Annual Meeting in Washington, D.C. Authors will have to rely on their own institutions for funding to attend the conference. The Southwestern Law Review has agreed to publish the winning paper and other papers submitted by program panel members (subject to final approval of the paper from the editors of that publication). The deadline to submit a draft paper is Thursday, September 1, 2011. Late submissions will not be accepted. Please submit the draft paper to Professor Ronald G. Aronovsky, Chair-Elect of the Section on Alternative Dispute Resolution, as an attachment to an e-mail sent to Professor Aronovsky at raronovsky@swlaw.edu. The attachment should be in Word or PDF format. An e-mail acknowledging submission will be sent promptly to each author. The submissions will be reviewed by a committee formed by the ADR Section’s Executive Committee. Decisions will be communicated by late September 2011. Technorati Tags: arbitration, ADR, law

As discussed in Lexology, a plaintiff filed a suit in federal court against the American Arbitration Association (“AAA”), the Arbitrator, and two employees of the AAA alleging that his due process rights were violated during the underlying arbitration proceedings. The court dismissed the action, concluding that the arbitral immunity set out in the Nevada’s Uniform Arbitration Act Section 38.229 protected the defendants against the suit. The case is Slaughter v. American Arb. Assoc., No. 10-01437 (USDC D. Nev. June 2, 2011) Technorati Tags: arbitration, ADR, law

The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status. Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status. Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status. Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status. National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status. Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status. Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status. FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status. Patent Reform Act of 2011 (a.k.a. America Invents Act). A patent holder with an invention in dispute can use arbitration to settle. S.23; Status. Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status. U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status. Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure on such mortgages. H.R. 1131; Status. Preserving Homes and Communities Act of 2011. Directs the Secretary of HUD to: (1) establish a grant program to make competitive grants to state and local governments to establish mediation programs that assist mortgagors facing foreclosure, and (2) develop and implement a plan to monitor conditions and trends in home ownership and the mortgage industry and the effectiveness of public and private efforts to reduce mortgage defaults and foreclosures. S.489; Status. H.R.1477; Status. Restoring Democracy in the Workplace Act. Declares that a specified rule prescribed by the National Mediation Board relating to representation election procedures shall have no force or effect. H.R. 548; Status. Community Access Preservation Act (CAP). Amends the Communications Act of 1934. Sets forth provisions regarding: (1) LGS or state enforcement, (2) nonbinding mediation and court proceedings concerning disputed support amounts, and (3) prerequisites for an LGS to impose additional PEG use requirements. H.R.1746; Status. Department of Peace Act 2011. Establishes a Department of Peace. Sets forth the mission of the Department, including: (1) cultivation of peace as a national policy objective; and (2) development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful conflict resolution, and structured conflict mediation. H.R.808; Status. Fair Arbitration Act of 2011. Amends the Federal Arbitration Act to establish certain procedures for arbitration clauses in contracts: the arbitration clause should have a printed heading in bold, capital letters entitled `arbitration clause’, which heading shall be printed in letters not smaller than 1/2 inch in height; explicitly state whether participation within the arbitration program is mandatory or optional; and identify a source that a consumer or employee can contact for additional information regarding costs and procedures. S.1186; Status. Medical Liability Procedural Reform Act of 2011. Provides grants to states for development, implementation, and evaluation of health care tribunals. H.R.314; Status. Empowering Patients First Act. Repeals the Patient Protection and Affordable Care Act and related health-care provisions and enacts in its place incentives to encourage health insurance coverage. The Act would limit recovery of attorneys’ contingency fees for representing claimants whether the recovery is by judgement, settlement, mediation, arbitration, or other form of alternative dispute resolution. H.R.105; Status. Foreclosure Prevention and Sound Mortgage Servicing Act of 2011. Prohibits a mortgagee from requiring a borrower, as a condition of loss mitigation activities, to: (1) waive or limit rights to certain legal actions against the mortgagee or servicer as a condition of accepting an offer of any loss mitigation activities, or (2) agree to arbitration as a condition of receiving […]

By Brett Goodman In Texas, only a few cases have come out of the last decade concerning legal malpractice as relating to mediation. In Lehrer v. Zwernemann, after being unsatisfied with the work of the two attorneys he hired in a divorce proceeding, Lehrer sued two attorneys for malpractice. See Lehrer v. Zwernemann, 14 S.W.3d 775, 776 (Tex. App. – Hous. [1st Dist.] 2000, pet. denied). This subsequent suit went to mediation, but Lehrer again unsatisfied brought further suit against the mediator and the attorney he hired to bring suit against the first two attorneys. Summary judgment was entered for the mediator. The court outlined that, in legal malpractice cases, the standard of review is that the legal action taken by the professional must be a wrongful one that causes some legal injury. Lehrer found offense in that the mediator and opposing counsel had a former professional relationship, but the court found this had no impact on the mediation settlement agreement and that the mediator fully executed his legal duties. Legal malpractice as an issue in a case does not seem to change background principles of the Texas ADR Act. In Alford v. Bryant, in 2004, Bryant employed Long as attorney to represent her in a dispute over a roofing contract. See Alford v. Bryant, 137 S.W.3d 916, 919 (Tex. App. — Dallas 2004, pet. denied). A written settlement agreement was hammered out in mediation, but a part of this settlement was that attorney’s fees would be left to the trial court. Bryant then sued her attorney for legal malpractice for failure to warn that this could be a possible outcome of settlement through mediation, but Long claimed that this was discussed between the two and the mediator. The court first elucidated how a party waives a privilege through “offensive use” of information and that Bryant waived confidentiality of the mediation through offensive use. Although Bryant at trial was fine with the testimony of the mediator to help his case, Bryant now tried to oppose it, citing confidentiality. The court, however, concluded that the testimony of the mediator should not be excluded because “[i]t is disingenuous for Bryant to claim error now when she expressly consented to this procedure at trial.” These ideas also seem to extend outside of Texas. For example, in a 2007 case, a lawyer who had been admitted to the respective bars of Virginia and Florida ended up participating in mediation in Arizona but felt justified because of the Florida mediation rules with which she was familiar. See In re Non-Member of State Bar of Arizona, Van Dox, 214 Ariz. 300, 302, 152 P.3d 1183, 1185 (2007). It was ruled that the lawyer should be sanctioned for unauthorized practice of law in Arizona, but because it was determined that the attorney’s wrongful action led to little if any legal injury, the lawyer was only subject to an informal reprimand. Technorati Tags: law, ADR, arbitration Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.