During 2010, Disputing was honored to post contributions from several law professors and practitioners. Some wrote guest-posts, others submitted comments via e-mail, and yet others alerted us of important developments in the ADR area. We would like to thank our blog contributors for improving Disputing‘s legal scholarship! If you are interested in submitting materials for Disputing, please e-mail us at: beth@karlbayer.com. Check out our 2010 blog contributors! (You may read their commentary by following the link after each bio.) The Honorable W. Royal Furgeson, Jr. received a B.A. from Texas Tech University in 1964 and a J.D. from the University of Texas School of Law in 1967. He was a United States Army Captain from 1967 to 1969 and an assistant county attorney in Lubbock, Texas in 1969. From 1969 to 1970 he was a law clerk for the Honorable Halbert O. Woodward at the U.S. District Court for the Northern District of Texas. Furgeson was in private practice in El Paso, Texas from 1970 to 1993. Furgeson currently serves as a federal judge on the U.S. District Court for the Northern District of Texas. He was nominated by President Bill Clinton on November 19, 1993 and confirmed by the United States Senate on March 10, 1994. He may be contacted at: Royal_Furgeson@txnd.uscourts.gov. His posts may be read here. (Photo source: Federal Bar Association) Don Philbin is an AV-rated attorney-mediator, negotiation consultant and trainer and arbitrator. He has resolved disputes and crafted deals for more than 20 years as a commercial litigator, general counsel and president of communications and technology-related companies. Don has mediated hundreds of matters in a wide variety of substantive areas and serves as an arbitrator on several panels, including CPR’s Panels of Distinguished Neutrals. He is an adjunct professor at the Straus Institute for Dispute Resolution at Pepperdine Law School, Chair of the ABA Dispute Resolution Section’s Negotiation Committee and a member of the ADR Section Council of the State Bar of Texas. Don is a Fellow of the American Academy of Civil Trial Mediators and is listed in The Best Lawyers in America (Dispute Resolution), Texas Super Lawyers (2010), The Best Lawyers in San Antonio and the Bar Register of Preeminent Lawyers. He may be contacted at: don.philbin@ADRtoolbox.com. His posts may be read here. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com. His posts are available here. Alan Scott Rau is the Mark G. and Judy G. Yudof Chair in Law at The University of Texas at Austin School of Law. He received his BA and LLB from Harvard University. Professor Rau teaches and writes in the areas of Contracts and Alternative Dispute Resolution (particularly Arbitration). He is co-author of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002); ADR and Arbitration: Statutes and Commentary (West, 1998), and Cases and Materials on Contracts (West, 2nd ed. 1992), and the author of several articles, including “The Arbitrability Question Itself” (American Review of International Arbitration, 1999); “La Contractualisation de l’Arbitrage: Le Modele Americain” (Revue de l’Arbitrage, 2001), and “All You Need to Know About Separability in Seventeen Simple Propositions” (American Review of International Arbitration, 2003). He serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto, China University of Political Science and Law in Beijing, Willamette University College of Law, the University of Geneva; and the Universities of Paris-I and Paris-II. Some of Professor Rau’s scholarly papers may be downloaded at the Social Science Research Network. His posts are available here. S.I. Strong is currently Associate Professor of Law at the University of Missouri and Senior Fellow at the award-winning Center for the Study of Dispute Resolution, having previously taught law at the University of Cambridge and the University of Oxford in the United Kingdom. Prior to joining the faculty at Missouri, Dr Strong was Counsel specializing in international dispute resolution at Baker & McKenzie LLP and a dual-qualified practitioner (U.S.-England) in the New York and London offices of Weil, Gotshal & Manges LLP. Dr Strong has acted in arbitral proceedings under a wide range of institutional rules and is listed as a neutral on various national and international rosters. Dr Strong is the author of numerous works on international arbitration, including the award-winning article, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Michigan Journal of International Law 1017 (2009), as well as the books Research and Practice in International Commercial Arbitration: Sources and Strategies (2009) and Class Arbitration and Collective Arbitration: Mass Claims in the National and International Sphere (forthcoming), both from Oxford University Press. Dr Strong, who is qualified as a lawyer at the New York and Illinois bars and as a solicitor of the Supreme Court of England and Wales, holds a Ph.D. in law from the University of Cambridge, a D.Phil. from the University of Oxford, a J.D. from Duke University, an M.P.W. from the University of Southern California and a B.A. from the University of California. Her posts may be read here. Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution and Professor of Law at Pepperdine University, as well as Academic Director of the Straus Institute for Dispute Resolution. The Straus Institute was ranked number one among academic dispute […]

Dr. Roselle Wissler, Research Director, Lodestar Dispute Resolution Program and Faculty Fellow, Center for Law, Science & Innovation at Arizona State University’s Sandra Day O’Connor College of Law, recently published an article entitled Representation in Mediation: What We Know From Empirical Research, 37 Fordham Urb. L. J. 419 (2010). In her article, Dr. Wissler examines the effect of legal representation on the various stages of the mediation process. Here is the abstract: The article begins with a description of the proportion of cases in mediation involving unrepresented parties and the policies and practices regarding representation in different mediation contexts. The core of the article examines empirical research findings regarding the effect of representation on several dimensions of the mediation process, including preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party “voice” and participation in mediation, and the tone of the session. In addition, the article examines the effect of representation on mediation outcomes, including the likelihood of settlement in mediation and the fairness of agreements reached. The studies find few differences consistently associated with representation, suggesting that unrepresented parties might face fewer problems in mediation, and lawyers might create fewer problems, than some claim. But the available research is too limited to be able to conclude that lawyers either play an essential role in mediation or are not needed, or that they are particularly helpful or detrimental to the mediation process. Additional findings show that how lawyers represent clients during mediation is related to parties’ assessments of mediation and settlement. The article concludes with a discussion of the additional research that is needed to inform policies and practices regarding representation in mediation. The article may be downloaded (without charge) from Social Science Research Network. We would love to hear your thoughts on the role of attorneys during the mediation process. Technorati Tags: ADR, law, mediation

Last week, the Southern District of Texas compelled arbitration in a class-wide lawsuit filed against AT&T Mobility, LLC. In Johnson v. AT&T Mobility, LLC, No. 4:09-CV-4104, (S.D. Tex., December 21, 2010), an AT&T wireless customer, Johnson, filed a class action lawsuit on behalf of himself and all similarly situated AT&T customers in the State of Texas to recover state and local sales taxes paid on monthly fees for internet services included in AT&T wireless data plans. According to Johnson, despite that Texas Tax Code § 151.325 provides a statutory exemption from sales tax on the first $25 of such monthly charges, AT&T collected, and continues to collect, sales tax on its wireless data plans. Johnson also filed claims which alleged AT&T violated the Texas Deceptive Trade Practices Act (DTPA) and sued for breach of contract, injunctive relief and damages. After a Judicial Panel on Multidistrict Litigation declined to transfer the case for consolidated pretrial proceedings, AT&T filed a motion to compel arbitration pursuant to the terms included in its Terms of Service Agreement. According to AT&T, the Terms of Service Agreement required that all disputes between the parties be arbitrated and that arbitration be conducted on an individual, rather than a class-wide, basis. Johnson did not dispute that an arbitration agreement existed, but argued instead that the agreement did not extend to the current dispute and, even if it did, the agreement was unenforceable. The court first examined the Terms of Service Agreement in order to determine whether the arbitration agreement applied to the parties’ dispute. The relevant agreement in ATTM’S Terms of Service reads: “AT&T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract tort, statute, fraud, misrepresentation or any other legal theory….” (Decl. of Richard J. Rives, Exs. 1-4, Doc. No. 18.) Thus, as the language encompasses “all disputes and claims” “arising out of” or “relating to” the agreement, the Fifth Circuit instructs that the agreement is a broad one capable of expansive reach. Plaintiff’s allegation that ATTM wrongfully collected taxes from him and from other similarly situated consumers surely arises out of or relates to an aspect of the relationship between Plaintiff, a consumer, and ATTM, a retailer and collector of sales tax. Indeed, the agreement’s language does not limit binding arbitration to disputes regarding the provision of wireless services. It specifically provides that all disputes and claims arising out of or relating to any aspect of the relationship must be arbitrated. There is no exception for the sales tax collection portion of the transaction between consumers and ATTM. Thus, the Court finds that Plaintiff’s claims arising from the alleged wrongful collection of taxes by ATTM fall within the broad language contained in all four versions of the Terms of Service to which Plaintiff agreed. The court next examined the enforceability of the arbitration agreement under Section 2 of the Federal Arbitration Act (FAA) stating “an agreement to arbitrate is valid under the FAA if it meets the requirements of the general contract law of the applicable state.” Johnson argued the arbitration agreement was both procedurally and substantively unconscionable under Texas law. According to the court, Johnson offered no evidence to support his contention that the agreement was procedurally unconscionable and no evidence existed in the record to support his claim. Johnson argued the agreement was rendered substantively unconscionable by the Texas Supreme Court’s holding in In re Poly-America, L.P., 262 S.W. 3d 337, No. 04-1049 (Tex. Aug. 29, 2008). In declaring Poly-America inapposite, the court stated, Plaintiff reads this holding broadly, essentially arguing that an agreement to waive any statutory right will not be enforced if it interferes with the deterrent purpose of a statutory scheme. The court, however, held that the elimination of the substantive rights and remedies available to plaintiffs under the Worker’s Compensation Act impermissibly undermined the goals of the statute such that the agreement was rendered substantively unconscionable. Notwithstanding that the [DTPA] expressly contemplates the availability of class-wide relief, Texas courts, as well as other courts interpreting Texas law, have consistently held that class actions are procedural devices, and do not implicate substantive rights. The court next dismissed Johnson’s argument that the agreement was so one-sided as to render it substantively unconscionable despite that Johnson would be bound by an arbitrator’s adverse decision and AT&T could still pursue a claim against the state comptroller in the event of an unfavorable decision by stating, The Court is persuaded, however, that the disparity in available review is not a function of the arbitration agreement itself, but of Texas state law, which provides ATTM recourse against the comptroller in the event it is ordered to issue a refund to Plaintiff. Johnson also argued that the arbitration agreement was rendered unenforceable by state law. According to the court, however, both Texas Civil Practice and Remedies Code § 171.002 and the Uniformity Clause of the Texas Constitution, Article VIII, Section 1, to the extent it “requires a judicial forum for all tax-related disputes, notwithstanding otherwise valid private agreements to arbitrate,” were preempted by the FAA. Finally, Johnson argued that enforcement of the arbitration agreement would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Although Johnson alleged that AT&T acted as the state’s collection agent, his Due Process and Equal Protection arguments failed since no state action occurred, Because a retailer is a private actor, Plaintiff’s Due Process and Equal Protection claims do not meet the threshold requirement that the alleged injury be the product of state action. Plaintiff’s attempt to circumvent this deficiency by casting his argument in terms of the State’s actions also fails because the State is not responsible for the conduct about which Plaintiff complains-the fact that he is forced to arbitrate his claims against ATTM. After holding […]

John Lande, Director of the LLM Program in Dispute Resolution and Isidor Loeb Professor at the University of Missouri School of Law, recently published a useful article entitled Helping Lawyers Help Clients Make Good Decisions About Dispute Resolution, 17 Dispute Resolution Magazine 14, (Fall 2010). In the article, Professor Lande “suggests a strategy to help lawyers counsel clients in choosing dispute resolution options.” Here is the abstract: Lawyers face a great challenge in advising clients about what dispute resolution (DR) process to use. There are many DR processes and people are developing new variations all the time. The choice of process can have a huge impact on the parties. Thus it is important for lawyers to give clients good advice about the choice of process, though this is easier said than done. This article suggests that local and subject-area legal practice communities use dispute systems design strategies to help lawyers counsel clients in choosing DR options. These strategies could include development of protocols for lawyers to assess DR options with convenient checklists, educational materials for clients, and trainings. These strategies can include rules requiring lawyers to advise clients about DR options, but lawyers can easily circumvent these rules, which are not likely to be effective unless they are part of a comprehensive strategy. The article may be downloaded here (without charge) from Social Science Research Network. Professor Lande’s article was also selected to appear in the March 2011 issue of GPSolo Magazine as a part of the “Best of ABA Sections” compilation. What are your thoughts? Technorati Tags: ADR, law, arbitration