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. Stay tuned to Disputing for more legislative updates! Technorati Tags: arbitration, ADR, law

In Texas, a party has to object in writing to the mediation referral within ten days after receiving notice. The court, in its discretion, may or may not refer the dispute to mediation. Section 154.022 of the Texas ADR Act provides the basis for objection to referral pending litigation: (a) If a court determines that a pending dispute is appropriate for referral under Section 154.021, the court shall notify the parties of its determination. (b) Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral. (c) If the court finds that there is a reasonable basis for an objection filed under Subsection (b), the court may not refer the dispute under Section 154.021. In Texas Dept. of Trans. v. Pirtle, the Fort Worth Court of Appeals addressed the consequences for not filing an objection under the Texas ADR Act. See Texas Dept. of Transp. v. Pirtle, 977 S.W.2d 657, 658 (Tex. App. — Fort Worth 1998, pet. denied). There, the defendant, the Texas Department of Transportation, failed to object to the mediation then, it refused to participate in the mediation. The trial court subsequently sanctioned the defendant. The defendant argued that the defendant never settles cases as a matter of policy. The court distinguished Pirtle from other cases where the duty to mediate in good faith did not apply. Gleason v. Lawson, 850 S.W.2d 714 (Tex. App. – Corpus Christi 1993, no writ) (Court did not order the mediation); Hansen v. Sullivan, 886 S.W.2d 467 (Tex. App. – Houston [1st Dist.] 1994, no writ) (The parties mediated in good faith but the matter could not be resolved); Decker v. Lindsay, 824 S.W.2d 247 (Tex. App.–Houston [1st Dist.] 1992, no writ) (Party objected to the mediation order but the court overruled the objection). Finally, the court of appeals, in upholding the sanctions award, found that the duty to mediate attaches when a party is served with a mediation order and fails to object. Technorati Tags: law, ADR, arbitration

The 82nd regular session of the Texas Legislature adjourned on May 30, 2011. More than 1,500 bills and resolutions have been sent to Governor Rick Perry. The Governor has until June 19th to sign, veto, or let the bills become law without a signature. Find the ADR bills filed during this session here. Governor Perry has already called for a special session starting on May 31st, the session is limited to: Legislation relating to fiscal matters necessary for the implementation of HB 1 as passed by the 82nd Legislature during the regular session, including measures that will allow school districts to operate more efficiently; Legislation relating to healthcare cost containment, access to services through managed care, and the creation of economic and structural incentives to improve the quality of Medicaid services; and Congressional redistricting. Stay tuned to Disputing for more legislative updates! Technorati Tags: arbitration, ADR, law

Our blog contributor Don Philbin has published his yearly survey of ADR case law in the Fifth Circuit. Here is part of the introduction: Alternative Dispute Resolution as a whole is thriving. Civil jury trials continued at multi-decade lows, both absolutely and as a percentage of dispositions.1 And alternatives to those trials have become mainstream. But not all Alternative Dispute Resolution (ADR) is equal. As ADR users have become more sophisticated buyers, they are thin-slicing their available processes. Mediation is growing in popularity and rarely results in a court challenge. It is popular because it is not rule-bound and stable because of clear law protecting the process. Arbitration, on the other hand, has drawn more criticism with increased use and dominates this year’s case review. Though nineteen arbitration cases were decided by the Fifth Circuit this term, that is less than half the number decided just two years ago. And most were quietly decided with unpublished and often per curiam opinions, which is consistent with broader circuit trends. While circuit activity in the area has calmed, the United States Supreme Court continues to accept and decide arbitration cases that have a pronounced impact on practice not only in the Fifth Circuit but in state-court cases governed by the Federal Arbitration Act (FAA). Three of seventy-three October 2009 Term Supreme Court opinions focused on arbitration, there is at least one more pending this October 2010 Term, and the Court has agreed to hear yet another during the October 2011 Term. Most of the Fifth Circuit cases involved pre-arbitration challenges to the arbitral process, and less than half of those were successful. Those are good odds compared to the post-arbitration challenges seeking to vacate an award: not a single arbitration award was vacated during the term. This is attributable in large part to two decades of U.S. Supreme Court rulings that have moved pre-dispute arbitration agreements “from disfavored status to judicially-denominated „super-clauses.?” As a result, arbitrators may the rate of disposition by jury trial 43.7%. In 2009, 0.6% of civil filings were disposed of by jury trial, up from 0.5% in both 2007 and 2008. You may download the article here. Technorati Tags: law, ADR, arbitration