The 82nd Texas Legislature convened on Tuesday, January 11, 2011. Prefiling of bills before the Legislature began on November 8, 2010. According to the State Bar of Texas, a proposed new Chapter 161 of the Civil Practice and Remedies Code is in the works. The Uniform Collaborative Law Act, “Relating to the resolution of certain disputes by collaborative law procedures,” has not yet been assigned a bill number. A copy of the Uniform Collaborative Law Act drafted by the National Conference of Commissioners of Uniform State Law and approved in July 2009 may be viewed here. As of October 27, 2010, only Utah has enacted the law, but Texas is one of 13 states or U.S. territories with an introduction planned before its legislature this year. A recent nationwide legislative activity map is available here. In 2001, the 77th Texas Legislature was the first in the nation to pass a Collaborative Law Statute, § 6.603 of the Texas Family Code. You may monitor bills as they move through the Texas Legislature here. Additionally, you may view individually filed House and Senate bills. The last day of the regular Texas legislative session will be Monday, May 30, 2011. An 82nd Texas Legislature “Dates of Interest” calendar is available here. Stay tuned to Disputing for updates regarding legislative bills affecting ADR in Texas. Technorati Tags: arbitration, ADR, law

The Dallas Court of Appeals has vacated an arbitration award because the arbitrator failed to disclose that he served as arbitrator in another case involving one party’s representative and a related company. In Alim v. KBR (Kellogg, Brown & Root) – Halliburton, No. 05-09-00395-CV, (Tex. App. – Dallas, Jan 10, 2011), Mohammad Alim was employed by KBR (Kellogg, Brown & Root) – Halliburton (“KBR”) and filed “an arbitration claim for employment discrimination, breach of contract, and retaliation” against KBR pursuant to Halliburton’s Dispute Resolution Plan. The plan required employees of Halliburton and its subsidiaries to submit employment disputes to binding arbitration before a neutral chosen by the parties. The plan also expressly stated it was governed by the Federal Arbitration Act (“FAA”). The American Arbitration Association (“AAA”) appointed a neutral to the case who attested he performed a conflicts check, none of the party representatives appeared before him in the past and he fulfilled his duty to disclose “in accordance with the Rules of the [AAA], Code of Ethics for Commercial Arbitrators and/or all applicable statutes pertaining to arbitrator disclosures.” When arbitration began, however, the selected neutral admitted to “coming across” KBR’s party representative and attorney in the past. At the close of arbitration, the arbitrator issued an award denying all of Alim’s claims. Alim made an objection to the AAA based on the arbitrator’s past relationship with KBR’s representatives. KBR responded the relationship “was so attenuated and immaterial that it did not give rise to an obligation to disclose,” and stated Alim waived his right to object when he failed to do so at the outset of the arbitration. Alim filed a petition before a trial court to vacate the award. KBR counterclaimed with a motion to confirm the award and raised a defense of waiver to Alim’s petition. The trial court then heard evidence in the matter. The arbitrator testified that his statement at the beginning of arbitration was not meant to amend his written disclosure, he performed his conflicts checks from memory and he had no recollection regarding how many cases he arbitrated in the past in which Halliburton was a party. The trial court denied Alim’s petition to vacate the award and signed KBR’s motion to confirm. Alim then appealed to the Fifth District of Texas Court of Appeals. The Dallas Court began by stating, We review the trial court’s order de novo, apply the FAA to substantive matters, and follow Texas law for procedural matters. According to the court, Under the FAA, evident partiality of the arbitrator is a substantive ground for vacating an arbitration award. 9 U.S.C. § 10(a)(2). A neutral arbitrator exhibits evident partiality if he does not disclose facts that might, to an objective observer, create a reasonable impression of the arbitrator’s partiality. Burlington N. R.R. v. TUCO, Inc., 960 S.W.2d 629, 636 (Tex. 1997); Thomas James Assocs., Inc. v. Owens, 1 S.W.3d 315, 321 (Tex. App.—Dallas 1999, no pet.) (extending TUCO to arbitrations under the FAA). In TUCO, the supreme court emphasized that “evident partiality is established from the nondisclosure itself, regardless of whether the nondisclosed information necessarily establishes partiality or bias.” TUCO, 960 S.W.2d at 636 (emphasis original) (citing Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 147 (1968)). The court held that the arbitrator’s failure to disclose, was a fact that might, to an objective observer, create a reasonable impression of partiality. The nondisclosure of that fact—and the failure to amend or correct his answer to the question specifically inquiring as to that fact—constitutes evident partiality and is grounds for vacating the arbitration award under the FAA. See TUCO, 960 S.W.2d at 636. Next, the Dallas Court dismissed KBR’s waiver defense since the arbitrator’s comment did not establish “Alim had knowledge of the undisclosed facts sufficient to support a finding that Alim intentionally waived his right to object,” or “acted inconsistently with claiming that right.” Additionally, KBR offered no evidence to establish otherwise. Because the arbitrator’s failure to disclose his past relationship with KBR’s representatives constituted evident partiality and there was no evidence to support a waiver defense, the Dallas Court of Appeals reversed the trial court’s order, vacated the arbitration award and remanded the case. Technorati Tags: arbitration, ADR, law

Carrie Menkel-Meadow, A.B. Chettle, Jr. Professor of Dispute Resolution and Civil Procedure at Georgetown University Law Center and Chancellor’s Professor of Law at the University of California Irvine School of Law, recently published The NLRA’s Legacy: Collective or Individual Dispute Resolution or Not?, ABA Journal of Labor & Employment Law, October 19 2010; UC Irvine School of Law Legal Studies Research Paper No. 2010-28. In her article, Professor Menkel-Meadow reviews the effect the National Labor Relations Act has had on alternative forms of dispute resolution in the labor and employment context. Here is the abstract: In this brief essay I review the legacy of the NLRA for dispute resolution – which is a mixed legacy, for both employment and labor rights, as well as for other areas of human disputing. The processes which grew around labor rights, including collective bargaining, negotiation, arbitration, mediation, med-arb and other “impasse” breaking techniques are good developments, demonstrating that there are other forms of dispute resolution, rather than winner-take-all litigation, brute struggles of power within “unassisted” negotiation, or worse, violent conflict. Labor processes, beginning with collective bargaining and grievance arbitration that became hybridized and more complex, such as grievance mediation and med-arb, were important innovations that spawned a whole new field in dispute resolution – dispute system design. But, in what many regard as a distortion of using alternative processes to reduce the contentiousness of litigation, or to save costs, or to serve some other (usually, employers’) interests, arbitration placed in mandatory, pre-dispute contracts of employment (and now all other kinds of contracts) and then interpreted to be the only form of dispute resolution available, is a controversial legacy which is hardly producing labor “peace.” Indeed, the very goals of “collective” employment rights may be eroded as rulings from non-union individual employment matters (and commercial contracts more generally) are being “blended” with and eviscerating what were often intended to be collective rights. The legal processes that have developed around the separation of legal concepts and consciousness of “employment” (seen as individual rights) versus labor (seen as collective rights) is one of the major themes of this essay. In this examination of the NLRA’s legacy it is important to recognize how much processes used to deal with labor-management relations have given us, but also how different processes for different purposes might be essential for producing not only labor peace, but labor justice. As I have argued about processes in general – process pluralism – process choice and variety may be essential for delivering some form of justice in different contexts. Labor relations might benefit from learning that lesson – one size will not fit all, including limited (under current law and practice) labor negotiation and bargaining strategies, “mandatory” commitment to grievance or employment arbitration in different contexts, whether contractual or statutory, and in my view, insufficient attention to mediation, for both collective and union-management, as well as individual, issues and disputes. The article may be downloaded (without charge) from Social Science Research Network. Technorati Tags: ADR, law, mediation, arbitration

  By Don Philbin U.S. Chief Justice John Roberts released his sixth Year-End Report on the Federal Judiciary on New Year’s Eve. While most of the press coverage has turned on his discussion of judicial vacancies, a three-page appendix highlights the workload of the federal courts. The Clerk of the Fifth Circuit produces a similar workload report containing insightful statistics, and the Texas Lawyer recently reviewed certain statistics for the U.S. District Courts in Texas. John Council, Moving Right Along: Annual Slowpoke Report Examines Pending Motions, Civil Cases, (January 3, 2011). (Free registration required.) Appeals are down marginally in the Fifth Circuit and down with regard to paid filings at the U.S. Supreme Court. District and Bankruptcy Court filings are both up, however, reflecting the economic downturn and serving as a proxy for future appellate activity. Fraud cases, in particular, posted significant increases in 2010. Fraud filings were up 12%, as were the number of named defendants. In fact, the broader measure of civil cases trended upward in both the U.S. District Courts and the Fifth Circuit, although criminal and in forma pauperis cases distorted the overall trends in the Circuit and Supreme Courts. The Fifth Circuit disposed of more cases by unpublished opinions, many of which were delivered per curiam. That data point is particularly noticeable in the ADR cases we are currently reviewing for Texas Tech’s annual symposium issue due to be published in May. Trials continue to dispose of very few civil filings. According to Chief U.S. District Judge Fred Biery of the Western District of Texas, less than one percent of civil cases filed in the district went to trial. That is consistent with recent figures from the Texas Office of Court Administration, which stand at 0.5%, and earlier works by Justice Nathan Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Tex. L. Rev. 163 (2005), and Professor Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empir. Leg. Stud. 459 (2004). When parties decide whether and how to resolve their disputes (decision tree here), a high level look at the court workloads and their impact can be helpful. For instance, in the Fifth Circuit the odds of reversal stand at 7.4%. If you lose there, only nine of 210 en banc petitions (4%) were granted in 2010. Additionally, only 77 of 7,738 cases filed (1%) in the U.S. Supreme Court were disposed of by opinion. Even when running those odds, it is important to keep in mind the time value of money. Other disposition time stats can help decision makers decide the cost /benefit of trial. By the numbers: U.S. Supreme Court docket down 1% to 1,596 82 cases argued; 77 disposed of in 73 opinions In forma pauperis docket increased 7% to 6,576 filings Overall filings up 5.4% as a result U.S. Appellate Court activity down 3% overall to 55,992 Fifth Circuit stats: New appeals down 1% to 7,337 Pending appeals down 6% to 4,744 Reversal rate down slightly to 7.4% from 8.0% in 2009 Petitions for Certiorari Filed to Opinions up slightly to 26% Summary Calendar up 8%; Oral Argument Calendar down 3% Published Opinions down 5%; Unpublished Opinions up 3% Per curiam Opinions up 2.3%, 98.2% of which were Unpublished Opinions En Banc Petitions up 4 to 210 (6.5% of opinions); 9 were granted Federal Question cases up 9.9% Diversity cases up 7.4% U.S. Civil cases up 9.5% Bankruptcy cases down 21.3% Appeals from the U.S. Western District of Texas down 4% U.S. District Court civil filings were up 2% overall to 282,895 Federal question claim filings rose 2% to 138,655 Diversity jurisdiction filings rose 4% to 101,202 Fraud filings set a new record: Fraud cases grew 12% to 9,371 Defendants in fraud cases rose 13% to 12,639 Less than 1% of civil cases filed in the U.S. Western District of Texas went to trial (from: Texas Lawyer) U.S. Bankruptcy petitions climbed 14% to 1,596,355 Highest number since 2005 (pre-Bankruptcy Abuse Prevention Act) Business petitions down 1% Chapter 7 filings up 16% Chapter 11 filings down 4% Chapter 13 filings up 9% Technorati Tags: arbitration, ADR, law, U.S. Supreme Court Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer, and arbitrator. He has resolved disputes and crafted deals for more than two decades as a business and commercial litigator, general counsel, and president of communications and technology-related companies. Don holds a Masters of Law degree from Pepperdine‘s top-ranked Straus Institute for Dispute Resolution, where he is now an adjunct professor, has trained and published at Harvard’s Program on Negotiation, is an elected Fellow of the International Academy of Mediators and the American College of Civil Trial Mediators, a member of the Texas Academy of Distinguished Neutrals, and was one of the first U.S. mediators certified under the international standards established by the International Mediation Institute. He has mediated hundreds of individual and class matters in a wide variety of substantive areas and serves as a neutral on several panels, including CPR’s Panels of Distinguished Neutrals. Don has published widely in the field, is Chair of the ABA Dispute Resolution Section‘s Negotiation Committee, and a member of the ADR Section Council of the State Bar of Texas. Mr. Philbin is listed in THE BEST LAWYERS IN AMERICA, TEXAS SUPER LAWYERS, and THE BEST LAWYERS IN SAN ANTONIO. His firm is listed in the inaugural edition of U.S. News and Best Lawyers “Best Law Firm” survey and the BAR REGISTER OF PREEMINENT LAWYERS.