The following bills relating to alternative dispute resolution were introduced by the 111st U.S. Congress. The session will last from January 3, 2009 until January 3, 2011. Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action. Stay tuned to Disputing for more legislative updates! Bills that passed: The Agricultural Credit Act of 2009 would reauthorize state agricultural mediation programs under title V of the Agricultural Credit Act of 1987. H.R. 3509 and Status; S.1375 and Status. H.R. 3509 has been passed by the Senate and House and now awaits the signature of the President before becoming law. The Restoring American Financial Stability Act of 2010 (a.k.a. the “Dodd-Frank Wall Street Reform and Consumer Protection Act”). The act, among other things, would give the SEC the power to ban or limit mandatory arbitration in certain agreements. House Versions: H.R. 4173 and Status; Senate Versions: S.3217 and Status. H.R. 4173 was signed into law (Public Law No: 111-203) on July 21, 2010 . The final version is here. “An Act Making Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2010, and for Other Purposes” contains an amendment (the “Franken Amendment“) that bans funds to defense contractors who require workers (employees and independent contractors) to arbitrate “any claim under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” (H.R. 3326 ; Amendment; Senator Franken’s video is here) H.R. 3326 was signed by President Barack Obama and became law (Pub. L. 111-118) on December 19, 2009. Link to the final version is here and major actions are here. Also, find guest-posts by F. Peter Phillips here and here. Implementation. On May 19, 2010 the Department of Defense issued an interim rule implementing the Franken Amendment with request for comments. Comments should be submitted before July 19, 2010. Read more here. The Consolidated Appropriations Act of 2010 (H.R. 3288) a spending bill signed into law by President Obama on December 16, 2009, (P. L. 111-117) includes a provision under which owners of automobile dealerships can use a binding arbitration process administered by the American Arbitration Association (AAA) to seek reinstatement if their businesses were closed by automobile manufacturers during the implementation of the Emergency Economic Stabilization Act of 2008. Read our posts here and here. Read more at the AAA website. Bills still pending: The Arbitration Fairness Act of 2009 would ban mandatory pre-dispute arbitration in employment, consumer, and franchise contracts. Senate version: S. 931 and Status. House version: H.R. 1020 and Status. The Employee Free Choice Act of 2009 would amend the National Labor Relations Act to require first mediation and then binding arbitration if both parties are unable to reach an agreement within a certain time frame. Senate version: S. 560 and Status. House version: H.R. 1409 and Status. The Payday Loan Reform Act of 2009 would amend the Truth in Lending Act to establish additional payday loan requirements to protect consumers. This bill prohibits a mandatory arbitration clause that is “oppressive, unfair, unconscionable, or substantially in derogation of the rights of consumers.” H.R. 1214 and Status. The Fairness in Nursing Home Arbitration Act of 2009 would render pre-dispute arbitration clauses in nursing home contracts unenforceable. Senate version: S. 512 and Status. House version: H.R. 1237 and Status. The Mortgage Reform and Anti-Predatory Lending Act of 2009 would amend the Truth in Lending Act of 1968. The bill provides that “[n]o residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer, other than a reverse mortgage may include terms which require arbitration of any other nonjudicial procedure as the method for resolving any controversy.” H.R. 1728 and Status. The Labor Relations First Contract Negotiations Act of 2009 would amend the National Labor Relations Act to require the arbitration of initial contract negotiation disputes. H.R. 243 and Status. The Consumer Fairness Act of 2009 would treat arbitration clauses which are unilaterally imposed on consumers as an unfair and deceptive trade practice and prohibit their use in consumer transactions. H.R. 991 and Status. The Preserving Homes and Communities Act of 2009 would require certain mortgagees to make loan modifications, establish a grant program for state and local government mediation programs, and create databases on foreclosures. S. 1731 and Status. The Conflict Resolution and Mediation Act of 2009 would provide assistance to local educational agencies for the prevention and reduction of conflict and violence. H.R. 4000 and Status. The Department of Peace Act of 2009 would establish a Department of Peace that would take a proactive, strategic approach in the development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful resolution of conflict, and structured mediation of conflict. H.R.808 and Status. The Rape Victims Act of 2009 provides that employment-related arbitration agreements shall not be enforceable with respect to any claim related to a tort arising out of rape. S. 2915 and Status. The Foreclosure Mandatory Mediation Act of 2009 would require lenders of loans with Federal guarantees or Federal insurance to consent to mandatory mediation. S. 2912 and Status. The Foreclosure Mandatory Mediation Act of 2010 would require the mortgagee of certain one- to four-family residences, as a prerequisite to a foreclosure proceeding to conduct a one-time mediation with the affected mortgagor and a housing counseling agency. H.R. 4635 and Status. The Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2009 provides for reforms of health care lawsuits by, among other things, requiring a court-appointed expert to review a heath care lawsuit for merits. H.R. 4039 and Status. Technorati Tags: arbitration, ADR, law

On June 25, 2010, the United Nations Commission on International Trade Law (UNCITRAL) adopted its revised UNCITRAL Arbitration Rules. The revised rules will be effective as of August 15, 2010. They include provisions dealing with multiple parties and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal. The rules also feature clauses aimed to enhance procedural efficiency; including new procedures for the replacement of an arbitrator, the requirement for reasonableness of costs, and a review mechanism regarding the costs of arbitration. The revised rules are here. Technorati Tags: ADR, law, arbitration

The United States Court of Appeals for the Fifth Circuit held that a grievance concerning a pilot’s discharge is not subjected to the Railroad Labor Act’s (RLA) mandatory arbitration mechanism because the collective bargaining agreement (CBA) between the airline and its pilot’s union explicitly excluded the claim. In CareFlite v. AFL-CIO, No. 08-10807 (5th Cir. Jul. 13, 2010) CareFlite is a medical transportation company that employed 18 helicopter pilots represented by the Professional Employees International Union, AFL-CIO (the “Union”). CareFlite and the Union entered into a CBA effective from April 6, 2006 until April 6, 2011. The CBA required all pilots to obtain certain pilot certification (the “ATP”) within a year of taking a course to be provided by CareFlite. It also stated that “termination of employment resulting from a pilot’s failure to obtain an ATP within the time requirements of this section is non-grievable and non-arbitrable.” Craig Lee Hilton (Hilton) had worked as a pilot for CareFlite since December, 1998. Hilton also served as a union representative. On June 6, 2006 CareFlite discharged Hilton. The Union filed a grievance claiming CareFlite was retaliating against Hilton for his union activity. The arbitrator ordered Hilton reinstated. After CareFlite reinstated Hilton, the Union petitioned CareFlite a 10-month extension for Hilton to complete his ATP. CareFlite denied the request and the Union filed a grievance on May 15, 2007 (the “extension grievance”). On May 26, 2007, CareFlite discharged Hilton for not possessing the ATP certification. On June 1, 2007, the Union filed another grievance seeking reinstatement of Hilton and extension of his ATP deadline (the “discharge grievance”). On June 4, 2007, CareFlite filed a motion in federal court seeking a declaratory judgment that both, the time extension and discharge grievances are not arbitrable under the RLA pursuant to the CBA clause. The district court ordered that both grievances be submitted to arbitration. CareFlite now appeals. The Fifth Circuit stated that the U.S. Supreme Court “explained in Hawaiian Airlines, ‘Congress’ purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes.’ 512 U.S. at 252.” Then, the court distinguished the concepts of major and minor disputes. A major dispute involves “rates of pay, rules or working conditions.” On the other hand, minor disputes relate to “controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.” Minor disputes “must be resolved only though the RLA mechanisms, including the carrier’s internal dispute-resolution processes.” The court then noted that the two grievances filed by the Union are distinct disputes and proceeded to analyze them separately. The court held that because the CBA explicitly excluded the discharge grievance from arbitration, it did not grow out of the interpretation or application of the CBA, and, therefore, it is not subjected to the RLA. However, the court held that Hilton and the Union may seek redress through the RLA to resolve the extension grievance. Technorati Tags: ADR, law, arbitration

We are pleased to share with you that our blog Disputing has been cited by the law review article Still Litigating Arbitration in the Fifth Circuit, But Less Often, 42 Tex. Tech L. Rev. 551 (2010) by Donald R. Philbin, Jr. and Audrey Lynn Maness. Kudos to the authors! The article can be accessed via Westlaw or LexisNexis. These are the Disputing blog posts cited by the article: Hall Street Meets S. Maestri Place: What Standards of Review Will the Fifth Circuit Apply to Arbitration Awards Under FAA Section 10(a)(4) After Citigroup, by Victoria VanBuren (May 4, 2009). The post discusses whether the manifest disregard of the law doctrine will ultimately survive in the Fifth Circuit in light of the U.S. Supreme Court ruling on Hall Street v. Mattel. GUEST-POST | Class and Consolidated Arbitration Under the Federal Arbitration Act: What Issues Will the United States Supreme Court Confront in Stolt-Nielsen, S.A. V. AnimalFeeds Int’l Co.?, by Philip J. Loree, Jr. (Sept. 21, 2009). This series discusses Stolt-Nielsen v. AnimalFeeds prior to the decision by the U.S. Supreme Court. 2009 Developments in Arbitration: Manifest Disregard of the Law, by Victoria VanBuren (Dec. 24, 2009). This post is part of our 2009 Year-End Highlight series and discusses the doctrine of manifest disregard of the law as interpreted by the circuit courts after Hall Street v. Mattel. You may find our 2009 year-end series under ‘Categories’ or here. Technorati Tags: law, ADR, arbitration