The following bills relating to alternative dispute resolution were introduced by the 111st Congress. 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 on December 19, 2009. Final version is here and major actions are here. Also, find guest-posts by F. Peter Phillips here and here. The Consolidated Appropriations Act of 2010 (H.R. 3288), a spending bill signed into law by President Obama on December 16, 2009, 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 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. 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. Technorati Tags: arbitration, ADR, law

The April 2010 edition of the ABA Journal features: “International Arbitration Loses Its Grip” by Steven Seidenberg. The article argues that international arbitration is starting to become as expensive and time consuming as litigation in U.S. Courts. Here is an excerpt: Arbitration was supposed to be the solution for international companies seeking to resolve disputes without expensive and drawn-out court battles. But it is starting to look more like the problem. Once a swift, cost-efficient method of resolving international commercial disputes, the process is now often bogged down in long and costly legal proceedings. “It now takes longer, costs more and has many more steps in the procedures,” says Joseph R. Profaizer, of counsel to Paul, Hastings, Janofsky & Walker in Washington, D.C. “There is now broader discovery, larger damages requests, longer briefing schedules, much bigger briefs, far greater reliance on experts and their testimony, and more procedural challenges to the arbitration.” If that sounds suspiciously like U.S.-style litigation, well, that is exactly the problem. Arbitration of international commercial disputes has taken on many of the characteristics of litigation in U.S. courts. And this has upset many companies that rely on arbitration to resolve cross-border business disputes. Richard Naimark Photo by Jordan Hollender “There’s been an increasing chorus of voices that international arbitration is getting too expensive, mostly because it is taking too long,” says Richard W. Naimark, senior vice president of the American Arbitration Association’s International Center for Dispute Resolution. A growing number of businesses appear to be turning away from arbitration and resolving their international commercial disputes the old-fashioned way—in the courts. In a targeted survey of corporate counsel published in 2006 by the School of International Arbitration at Queen Mary, University of London, only 11 percent of in-house counsel said they preferred litigation to settle international disputes. In a follow-up survey conducted two years later, that figure rose to 41 percent—only slightly less than the number who prefer international arbitration. Many businesses, attorneys and international arbitral organizations lament an Americanization of international arbitration. But they are often themselves to blame. “It’s the parties who are causing the problem,” says one expert who spoke on the condition that he not be identified. “They’re the ones picking counsel and deciding how the arbitration is to be run. They’re asking the arbitral associations to stop the parties from bringing the problems on themselves.” Profaizer agrees. “If arbitration is to commit suicide, it will do so of its own choosing, because the parties have chosen to make it more expensive, time-consuming and more like litigation.” RESOLUTION IN PRIVATE Arbitration isn’t dead yet. Far from it. Last year, the number of international commercial arbitrations hit a record high. It may be less popular than it used to be, but arbitration remains the preferred method of resolving international commercial disputes. Edward Mullins Photo by Matthew Pace There are good reasons. For starters, arbitration offers parties the ability to resolve their problems in private. “Unlike the situation in many courts, in a typical commercial arbitration outsiders have no access to the case docket, written submissions or oral hearings. This allows parties to address matters outside the spotlight, which probably helps facilitate the resolution of commercial disputes,” says Mark W. Friedman, a partner in the New York City office of Debevoise & Plimpton. Arbitration also offers parties a neutral forum, where neither side has the “home court” advantage of litigating in its nation’s courts. “You don’t have to learn a new set of rules from some foreign country, so neither side has a procedural advantage. And you don’t have to rely on local counsel you’re unfamiliar with,” says Edward M. Mullins, a partner in the Miami firm of Astigarraga Davis and co-chair of the International Litigation Committee of the ABA Section of Litigation. Read the full article here. Any thoughts? Technorati Tags: law, ADR, arbitration

On March 31, a new amicus brief has been filed with the U.S. Supreme Court on the case Rent-A-Center, West v. Jackson, Docket No. 09-497 (read our previous post here). The case is scheduled to be argued on April 26. The new brief filed by professional arbitrators and arbitration scholars in support of the respondent, argues that the question of whether an arbitration agreement is unconscionable should be decided by a court, not an arbitrator. Links to the case documents, including the new brief can be found at the ABA website here. Stay tuned to Disputing for more legal developments. Technorati Tags: law, ADR, arbitration

The ABA Section of Dispute Resolution announced the 2010 winners of its First Annual Mediation Video Contest on YOUTUBE. An Honorable Mention Winner was “Elder Mediation: A Solution For Families at War” submitted by: Carolyn Rosenblatt, Bruce Tokars Erika Falk, Prescott Cole, Albert Freedman. Check it out: Stay tuned to Disputing for more Honorable Mention Winners! Technorati Tags: ADR, law, arbitration