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: “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. Find out 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. Find out more details at the AAA website. Bills still pending: The Restoring American Financial Stability Act of 2010 (a.k.a. the “Dodd-Frank Wall Street Reform and Consumer Protection Act”) 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. The June 29 Conference Report is here. 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. 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 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. 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

Mark your calendars! The Center for Public Policy Dispute Resolution at the University of Texas School of Law presents its 2nd Annual Summer Skills Enrichment Institute. when: July 28-30, 2010 what: Innovations in Collaboration and Conflict Resolution where: Four Seasons Hotel, Austin, TX Find out more here.

In Blaustein v. Huete, No. 09-31078 (5th Cir. June 18, 2010), Burt Huete (“Huete”) along with Richard and Gail Blaustein, formed Special Projects Limited, L.L.C. (“SPL”) in connection with an application for a provisional patent for a wireless tracking device they had invented. SPL hired the law firm Maier & Maier (“Maier”) to serve as patent counsel. Their written fee agreement contained an arbitration clause and listed SPL as the client, with Huete and Blaustein serving as signatories for SPL. Soon after, Huete hired separate counsel and sued the Blausteins in state court, and the Blausteins sued Huete in federal court. Huete alleged that the Blausteins and Maier conspired to let the provisional patent lapse and failed to list him as an inventor on a subsequent patent application. The suits were consolidated in federal court and added Maier as a defendant. Maier moved to dismiss Huete’s claims and the district court found that Huete was a party to the fee agreement between Maier and SPL. Therefore, the court granted Maier’s motion to compel arbitration pursuant to the agreement’s arbitration clause. Huete appealed. The Fifth Circuit, after an “examination for the ‘four corners of the agreement’ ” reasoned that Huete is not a signatory to the arbitration clause. The court began its analysis by saying that “there is a presumption favoring liberal construction of arbitral clauses.” However, the court noted that the agreement stated: “[t]he Client and Maier & Maier PLLC jointly agree that any dispute, controversy, or claim between us arising out of or relating in any way to this engagement shall be resolved through binding arbitration . . . .” The court concluded that Huete signed the agreement as “the Client,” representing SPL and this was not enough to bind him individually. In reversing the district court dismissal, the Fifth Circuit did not foreclose the “possibility that Huete [could] be held to the arbitration agreement as a non-party beneficiary.” Technorati Tags: ADR, law, arbitration

By Kent B. Scott and Cody W. Wilson How Do We Get Started? There are many things for counsel and the client to do prior to mediating. A key task is to prepare the client to participate in the mediation. This is essential to a successful mediation outcome, because unlike arbitration and litigation, in which counsel for the parties do most if not all of the talking, mediation involves client participation. However, some clients feel more comfortable than others in representing its interests. Other tasks include determining whether there is any reason not to hold a joint session, identifying the documents and information to be exchanged, who should attend the mediation on behalf of the client, whether one or more experts will be needed, who the ultimate decision makers will be who must attend the mediation on the client’s behalf because without them the dispute cannot be settled. Preparing the client for mediation Clients need to know what to expect at the mediation and how to conduct themselves. They need to know that mediation is less adversarial than other processes, and they should be prepared to be civil and even pleasant to the adversary during joint sessions and leave their anger at the office. Venting can take place in private sessions with the mediator. Prior to mediation the client and counsel should identify the strengths and weaknesses of each side’s case. Some counsel fear that by helping the client see weaknesses in its own case, they will be perceived to be less than a zealous advocate. So some attorneys leave this task to the mediator. But a client who has a realistic view of the case when he or she walks in the door is in a position to reach a settlement much sooner. Since the mediator will try to learn what each side would desire as a settlement and what needs and interests a settlement would have to satisfy, the client should try to identify these items prior to the mediation. This will help the mediator and the client develop proposed options for settlement. Discussions concerning information to be revealed The client and counsel discuss the information and documents to be exchanged with the adversary and what will be revealed in the client’s mediation statement. A mediation statement presents a party’s view of the facts and the applicable law. Whether the parties’ mediation statements will be given only to the mediator or exchanged by the parties will be decided before the mediation by counsel for the parties and the mediator. Mediators usually will ask the parties to prepare confidential mediation statements to be viewed only by the mediator. Where appropriate, the parties can agree to exchange their mediation statements with each other. The mediator may ask the parties’ attorneys to prepare confidential summaries of the strengths and weaknesses of each side’s case and their objectives for the mediation. Counsel and the client should discuss how much confidential information to initially disclose to this statement, as well as in the private caucus. The client’s views on this could change during the mediation as the client develops trust in the mediator. The mediator will determine how far in advance of the mediation the mediation statement and any confidential summaries should be submitted. These documents ultimately will educate the mediator so that he or she can engage in “reality testing” and help the parties assess the offers and counteroffers that will be transmitted by the mediator during the mediation. Decisions concerning mediator selection One of the most important decisions to be made in mediation is deciding who should be the mediator. Counsel and client should discuss the qualifications desired in the mediator. This can include mediation skills as well as subject matter expertise in the area of the dispute. Counsel should explain the difference between an evaluative and facilitative mediator so the client can determine what kind of mediator it would like. When preparing the client for mediation, it is not necessary for the client to know what its final offer or demand would be. Indeed it is better to be flexible and not have reached this point. However, the client should be made aware of the alternatives if the mediation does not result in a complete settlement so that when the mediation actually takes place, the client can weigh those alternatives, especially if the parties end up in an impasse situation. Part VII of this series will discuss dealing with the mediator and the opposing party. Stay tuned. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.