by Holly Hayes Our August post on the “bad faith” mediation section of Texas House Bill 2256 (read more about the bill here) that requires the mediator to report bad faith mediation to the insurance commissioner or the Texas Medical Board, as appropriate, prompted our attention to how other states are addressing confidentiality in mediation. Texas operates under the Alternate Dispute Resolution Procedures (Chapter 154) of the Civil Practice & Remedies Code which provides in Section 154.053(c) that “[u]nless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” The Uniform Mediation Act (UMA) addresses confidentiality in Section 8 and has been adopted in eleven states: Nebraska in May 2003; Illinois following nearly a month later; with New Jersey, Ohio, Iowa, Idaho, South Dakota, Washington, Utah, the District of Columbia and Vermont more recently. The UMA has been introduced in five states: Nevada, Hawaii, Minnesota, New York, and Rhode Island. Two states rejected the UMA: Connecticut and Indiana. Eight states adopted similar bills: Delaware, Montana, Nevada, Oregon, Wyoming, New Mexico, and Florida. With respect to Massachusetts, Diane Levin from the Mediation Channel commented that “after reaching impasse in its deliberations, the mediation community here in the Commonwealth has agree to put discussions regarding the UMA on hold for now and will revisit it at a later date”. She gives a thoughtful overview on her blog about the Massachusetts experience as the state considered adoption of the UMA. (read more here) Diane also referred us to the “comments” made concerning the confidentiality section of the UMA. The UMA states that mediation communications are confidential to the extent agreed upon by the parties or provided by other law or rule of the state. As stated in the “comment” section by the Drafters of the UMA, expectations regarding the disclosure of mediation communication outside of the proceedings are complicated. Parties expect in most situations that communications during a mediation will not be discussed with others outside the mediation.Parties even may choose mediation to resolve their disputes to assure privacy of their issues and the related communications. However, those same parties may also expect, with good reason, that they can discuss what occurred during their mediation with family members, spouses and others without the risk of civil liability that might accompany an affirmative statutory duty barring such disclosures. The Drafters of the UMA, at one point, attempted to establish a comprehensive rule that would prohibit such disclosures, but found it impracticable to do so without imposing a severe risk of civil liability on the many unknowing mediation participants who might discuss their mediations with others for any number of reasons. (read more here) The provision of the privilege of confidentiality in the UMA is intended to promote full disclosure of the issues to the mediator and hopefully ensure a higher level of success for the mediation and greater satisfaction for the participants. Successful mediations are expected to promote greater community confidence in the mediation process resulting in more dispute resolution through mediation. Finally, Steven Mehta, at Mediation Matters also provided a thoughtful analysis on mediation confidentiality. (read more here) And Karin S. Hobbs’s article, “Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?“ is an excellent discussion on the importance of confidentiality in mediation. Technorati Tags: Healthcare, ADR, law, mediation Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

During 2009, we also had the honor to guest-post on arbitration and e-discovery: “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?” posted on May 4, 2009 at the Loree Reinsurance and Arbitration Law Forum. (post available here) “E-Discovery and the Enron E-mail Dataset Research,” posted on October 21, 2009 at Peter Vogel‘s Internet, Information Technology, & e-Discovery Blog. (post available here) Technorati Tags: law, ADR, arbitration

During 2009, we were 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: victoria@karlbayer.com. Check out our 2009 blog contributors! (you may read their commentary by following the link after their bio) Audrey L. Maness is an associate in the Houston office of Weil Gotshal & Manges, and focuses her practice on patent litigation. In 2004, Ms. Maness graduated from Central Michigan University with a B.S. in Economics. Ms. Maness earned her J.D. at Pepperdine University School of Law, graduating summa cum laude in 2007. While at Pepperdine, Ms. Maness served as a Note and Comment Editor for the Pepperdine Law Review and as a research assistant for Dean Ken Starr. Following graduation, Ms. Maness clerked for the Honorable Steven M. Colloton, Judge for the United States Court of Appeals for the Eighth Circuit. She can be reached at: audrey.maness@weil.com. (read the post here) Don Philbin is a mediator, negotiation consultant and trainer, arbitrator, and attorney based in San Antonio. He has resolved disputes and crafted deals for more than 20-years as a commercial litigator, general counsel, and president of $100M-plus 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, holds a B.A. (business) from Trinity University, an executive M.B.A. from The University of Texas at San Antonio, and a J.D. and LL.M. (dispute resolution) from Pepperdine University School of Law. Don is listed in The Best Lawyers in America (Alternative Dispute Resolution; Woodward/White 2007, 2008, 2009). He may be contacted at don.philbin@ADRtoolbox.com. (read the posts here) 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 in the United States Army Captain from 1967 to 1969. He was an Assistant county attorney of County Attorney’s Office, Lubbock, Texas in 1969. He was a law clerk, Hon. Halbert O. Woodward, U.S. District Court, Northern District of Texas from 1969 to 1970. He was in private practice in El Paso, Texas from 1970 to 1993. Furgeson was a federal judge on the United States District Court for the Western District of Texas. Furgeson was nominated by President Bill Clinton on November 19, 1993, to a new seat created by 104 Stat. 5089. He was confirmed by the United States Senate on March 10, 1994, and received his commission on March 11, 1994. He assumed senior status on November 30, 2008. (read the posts here) John C. Fleming practices in the area of banking, financial services, regulatory and administrative law, governmental relations, commercial litigation and arbitration. His clients include banks, thrift institutions, life insurance companies, investment advisers and securities firms. Prior to joining Hays & Owens, Mr. Fleming served four years as General Counsel to the Texas Department of Savings and Mortgage Lending which oversees and regulates state chartered thrift institutions, mortgage brokers and mortgage bankers. He is an adjunct professor at The University of Texas School of Law and a frequent speaker on arbitration, banking and mortgage law topics. Mr. Fleming is Vice-Chair of the Regulatory and Compliance Committee of the Texas Mortgage Bankers Association, and is a nominee to become a new director of the Texas Association of Bank Counsel. The American Arbitration Association honored him with the 2008 President’s Award for Leadership in Conflict Management in recognition for his work in arbitration, mediation, and education; he also serves on the Commercial Arbitrator Roster. Mr. Fleming is a past Chair of the State Bar of Texas Alternative Dispute Resolution Section. (read the posts 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. (read the posts here) Philip J. Loree Jr. is a partner in the boutique law firm of Loree & Loree, which focuses its practice on reinsurance dispute resolution and commercial and industry arbitration. Prior to forming Loree & Loree, Mr. Loree was a partner in the Litigation Departments of Cadwalader, Wickersham & Taft LLP and Rosenman & Colin LLP. He was also a Shareholder in Stevens & Lee, P.C.’s Litigation Department. Mr. Loree is also blogmaster of the Loree Reinsurance and Arbitration Law Forum, where he frequently comments on issues pertinent to reinsurance, and commercial and industry ADR. He is owner and co-founder (with Karl Bayer, Don Philbin, Robert Bear, and Victoria VanBuren ) of LinkedIn’s Commercial and Industry Arbitration and Mediation Group, which provides an open forum for the discussion of commercial, industry and consumer ADR. (read the posts here) Alan Scott Rau is the Burg Family Professor of law at The University of Texas. 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 United States Court of Appeals for the Fifth Circuit held that the payment of a deposit for an arbitration was a procedural matter for the arbitrators to decide. In Dealer Computers Svc v. Old Colony Motors, No. 09-20049 (5th Cir. Nov. 19, 2009) Old Colony Motors, Inc. (Old Colony) contracted with Dealer Services, Inc. (Dealer Services) for the purchase and maintenance of computer hardware and software for Old Colony’s dealership. Old Colony was required to buy the hardware necessary to run Dealer Services upgrades. In 2006, Dealer Services informed Old Colony that it would no longer support their current computer system without the required upgrades. Old Colony responded that it could not afford to pay for the mandatory upgrades. In 2007, Dealer Services filed an arbitration demand for almost $500,000 plus attorney fees and costs. The parties had agreed to arbitrate their disputes before the American Association of Arbitration (AAA) following the AAA Commercial Arbitration Rules. Because Old Colony could not pay its $26,900 deposit for the final arbitration hearing, the arbitrators asked Dealer Computer Services (the complainant) to pay the money for Old Colony. Dealer Services refused to pay and sued Old Colony in district court. The district court ordered Old Colony to pay. The issue decided by the Fifth Circuit was whether the district court erred by ordering Old Colony (the respondent) to pay the deposit to cover the arbitration fees. First, the court highlighted the test to determine whether a court should compel arbitration: Whether the parties agreed to arbitrate: (a) whether a valid agreement to arbitrate exists, and (b) whether the dispute falls within that agreement; and Whether federal statute or policy renders the claims nonarbitrable. Next, the court noted that the only question was whether the dispute falls within the arbitration agreement. Citing Howsam v. Dean Witter Reynolds, Inc., 123 S. Ct. 588, 592 (2002) the court said that “absent an agreement to the contrary, the parties intend that the arbitrator, not the courts, should decide certain procedural questions which grow out of the dispute and bear on its final disposition.” The court also noted that the AAA Rules allow the arbitrators discretion to order either party to pay the fees. Accordingly, the Fifth Circuit concluded that payment of the AAA fees was a procedural issue and thus one for the arbitrators to decide. [Ed. note: find Professor Alan Scott Rau’s commentary about this case here.] Technorati Tags: law, ADR, arbitration