Nancy Welsh, Professor of Law at the Pennsylvania State University Dickinson School of Law recently authored “I Could Have Been a Contender: Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution,” 114 Penn St. L. Rev. Vol. 114:4, No. 1149, 2010. In her article, Professor Welsh argues that recent U.S. Supreme Court decisions may be undermining any motivation for institutional defendants to negotiate or mediate with civil rights claimants. She suggests that courts in some cases consider conducting an expedited trial before an advisory jury “followed by negotiation or mediation between the parties and their lawyers” in order to maintain a robust public forum and defray costs. Here is the abstract: With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate – or even communicate with and listen to – such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants – and our society – of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life – not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue – i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed. The article may be downloaded here (without charge) from Social Science Research Network. What are your thoughts? Technorati Tags: ADR, law, mediation, arbitration

Continuing our 2010 Year-End Highlights series, we present today a summary of noteworthy arbitration opinions handed down last year by the Texas Supreme Court. In East Texas Salt Water Disposal Co. v. Richard Leon Werline, No. 07-0135, (Tex. Mar. 12, 2010), the Texas Supreme Court held that the Texas General Arbitration Act allowed an appeal from a trial court’s order which denied confirmation of an arbitration award, vacated the award and directed that the dispute be arbitrated anew. You may read more here. In In Re Odyssey Healthcare, No. 09-0786, (Tex. May 7, 2010), the Court compelled arbitration between an employee and her employer where the plaintiff was employed in El Paso, the parties entered into an employment agreement which contained an arbitration provision, the employer was a non-subscriber to worker’s compensation and the arbitration provision required any arbitral panel be selected from Dallas. You may read more about this case here. In In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Inc., No. 09-0161, (Tex. June 25, 2010), the Texas Supreme Court held that a trial court abused its discretion when it refused to stay litigation that could moot arbitration of related claims in the same lawsuit. Read more here. In In re 24R, Inc., D/B/A The Boot Jack, No. 09-1025, (Tex. Oct. 22, 2010), the Court held that an arbitration agreement signed as a condition of continued employment was not illusory and did not require a savings clause. You may find more information about this case here. In In re Olshan Foundation Repair Company, LLC, Nos. 09-0432, 09-0433, 09-0474, 09-0703, (Tex. December 3, 2010), the Supreme Court of Texas held that the Federal Arbitration Act preempted the Texas General Arbitration Act in three related general arbitration clauses, but that a similar, more specific arbitration clause was unenforceable under the TAA. Read more about this ruling here. In MCI Sales & Serv. v. Hinton, No. 09-0048, (Tex. December 17, 2010), the Court held that participation in a non-binding mediation rendered a debtor a “settling person” under Chapter 33 of the Texas Civil Practice and Remedies Code for purposes of determining proportionate liability. Find more about this case here. Technorati Tags: arbitration, ADR, law, Texas Supreme Court

In 2010, the United States Court of Appeals for the Fifth Circuit decided the following arbitration-related cases: In Hall-Williams v. Law Office of Paul C. Miniclier, PLC, No. 09-30113, (5th Cir., Jan. 13, 2010), the Fifth Circuit compelled arbitration of a fees dispute between a law firm and a former client. The court held the parties’ arbitration clause was enforceable notwithstanding termination of their services contract. (read more here) In Institutional Capital Management, Inc. v. Claus, No. 08-20710, (5th Cir., Feb. 11, 2010), the court held that a National Association of Securities Dealers arbitration panel did not exceed its authority when it awarded attorney’s fees directly to counsel. (read more here) In Todd v. Steamship Mutual Underwriting Association (Bermuda) Limited, No. 09-30177, (5th Cir., March 18, 2010), the Fifth Circuit held that nonsignatories to arbitration agreements may be compelled to arbitrate under the New York Convention. (read more here) In Blaustein v. Huete, No. 09-31078, (5th Cir., June 18, 2010), the court refused to compel a nonsignatory to arbitrate his individual claims where he signed a legal representation fee agreement acting as a signatory for a limited liability company. The Fifth Circuit did not foreclose the possibility that he could be “held to the arbitration agreement as a non-party beneficiary,” however. (read more here) In CareFlite v. AFL-CIO, No. 08-10807, (5th Cir., Jul. 13, 2010), the Fifth Circuit held that a grievance concerning a pilot’s discharge was not subject to the Railroad Labor Act’s mandatory arbitration mechanism where a collective bargaining agreement between the airline and its pilots’ union explicitly excluded the claim. (read more here) In MC Asset Recovery, LLC v. Castex Energy, Inc., No. 09-10451, (5th Cir., Aug. 2, 2010), the court held that a defendant waived its right to compel arbitration because its substantial invocation of the judicial process had prejudiced the plaintiff. (read more here) In Allen v. Regions Bank, No. 09-60705, (5th Cir., August 11, 2010), the Fifth Circuit held that the question of arbitrability is for an arbitrator to decide where an arbitration agreement existed between the parties and they clearly intended for the issue to be arbitrated based on the wording of the arbitration provision. (read more here) In Positive Software Solutions, Inc. v. New Century Mortgage Corp., No. 09-10355, (5th Cir., September 13, 2010), the court held that it lacked inherent authority to impose sanctions for conduct which occurred during arbitration. (read more here) In Noble Drilling Services, Inc. v. Certex USA, Inc., No. 10-20083 (5th Cir., September 15, 2010), the Fifth Circuit held a court may not compel arbitration under a theory of direct benefits estoppel where there was no evidence a party had actual knowledge that a contract containing an arbitration clause existed and the party made no attempt to enforce the specific provision which contained the arbitration clause. (read more here) In Juan Torres v. S.G.E. Management, L.L.C., No. 09-20778, (5th Cir., October 5, 2010), the court held in an unpublished opinion that an arbitration provision in a multilevel marketing program contract which could be amended at the sole discretion of one party and bound the other party “upon notice” was illusory and unenforceable. (read more here) In Janvey v. Alguire, et al., No. 10-10617, (5th Cir., December 15, 2010), the court held that a motion to compel arbitration was not enough to defeat a federal district court’s preliminary injunction. (read more here.) Disputing will continue its 2010 Year-End Highlights next week. Technorati Tags: arbitration, ADR, law

Today, Disputing continues its 2010 Year-End Highlights. The U.S. Supreme Court decided several cases related to arbitration this year: On April 27, the U.S. Supreme Court handed down its decision in Stolt-Nielsen v. AnimalFeeds, 08-1198. The Court held that “Imposing class arbitration on parties who have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq.” On June 1, the Supreme Court denied certiorari in R.J. Reynolds Tobacco Company v. Montana, 09-911. The question presented was whether the Montana Supreme Court violated the Federal Arbitration Act by refusing to compel arbitration of a dispute between tobacco companies and settling states that courts of other states and territories held arbitrable under the plain terms of the nationwide Master Settlement Agreement. On June 21, the Court decided Rent-A-Center, West v. Jackson, 09-497. The question presented was whether a district court is required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (”FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision? On June 24, the U.S. Supreme Court decided Granite Rock v. Teamsters, 08-1214. In their decision, the Court held that a district court, not an arbitrator, should decide a Collective Bargaining Agreement (CBA) ratification date. The court noted that although “[t]he CBA requires arbitration of disputes that ‘arise under’ the agreement. The parties’ ratification-date dispute does not clearly fit that description.” On October 4, the Court denied certiorari in two unpublished cases from the 5th Circuit. In Louisiana Safety Association of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London, et. al, 09-945, (No. 06-30262, 5th Circuit, November 9, 2009, unpublished), the Court was asked to consider whether Chapter 2 of the FAA is an “Act of Congress” subject to the anti-preemption provision of the McCarran-Ferguson Act. Zurich American Insurance Company et. al v. Pioneer Natural Resources USA, Inc., 09-1305, (No. 09-31031, 5th Circuit, December 17, 2009, unpublished) asked whether, in a case removed under the Convention on the Recognition and Enforcement of Arbitral Awards, 9 U.S.C. § 205, an order denying a motion to compel arbitration and remanding to state court is appealable under the FAA’s express right of interlocutory appeal from such denials, 9 U.S.C. § 16(a)(1)(C), notwithstanding 28 U.S.C. § 1447(d). On November 9, the U.S. Supreme Court heard oral arguments in AT&T Mobility LLC v. Concepcion, 09-893, a class-wide arbitration case from the 9th Circuit. AT&T concerns the applicability of state law unconscionability defenses to class arbitration exclusion clauses in consumer arbitration agreements. Disputing will be keeping an eye out in 2011 for the Court’s opinion. Finally, on December 13, the Court denied certiorari in Certain Underwriters at Lloyd’s, London v. Lagstein, 10-534. The case sought to address whether a “manifest disregard of the law” standard of review for arbitration awards remains after the Court’s decision in Hall Street Associates, L.L.C v. Mattell, Inc., 552 U.S. 576 (2008). Technorati Tags: arbitration, ADR, law, U.S. Supreme Court