During this Fourth of July holiday weekend, our good friend Don Philbin stumbled across “Civil Jury Trials R.I.P.? Can it Actually Happen in America?” 40 St. Mary’s L.J. 795 written by the Honorable W. Royal Furgeson, Jr. In the article, Judge Furgeson discusses the Arbitration Fairness Act of 2007, which is analogous to the Arbitration Fairness Act of 2009 (previously blogged here) currently considered in the U.S. Congress. If enacted, the bill would amend the Federal Arbitration Act to ban pre-dispute arbitration of employee, consumer, franchise, and civil right claims. (Senate version: S. 931 and Status; House version: H.R. 1020 and Status) Judge Furgeson proposes to amend the Federal Arbitration Act: Why not amend the FAA so that all mandatory arbitration agreements are unenforceable if entered into before the actual dispute arises, except for those in collective bargaining agreements and international contracts? There is a long history behind the development of collective bargaining agreements in labor contracts and both labor and management have put processes in place that facilitate in special ways the objectives of both parties. Such arrangements should be honored. Likewise, the globalization of the marketplace has created demands for dispute resolution in the international arena that are best served by mandatory arbitration agreements. To not support such agreements would place American companies at a disadvantage and would be a mistake. For all other dealings between parties in the United States, parties should be allowed to agree to arbitration only after the dispute arises. Another amendment would also be in order. The parties to arbitration should be able to agree that their arbitrator’s decision can be reviewed for legal error. The present state of the law forecloses such an agreement, as the Supreme Court has recently announced, but such a review would be a positive development and should be considered by amendment to the FAA. The article also discusses the use of mediation in the American system: It also should be noted that non-binding mediation is an entirely different kind of animal and is a wonderful addendum to our justice system. Even in yesteryear when juries flourished, over 90% of cases settled. Before mediation, they settled without the parties having any forum to tell their story. Mediation facilitates this important principle of due process, where everyone gets to tell their story before an impartial and fair decision maker. Such mediation, however, does not have the defects of binding arbitration outlined above. If the matter is not resolved in mediation, the right to jury is preserved. And judicial review is also preserved. Now, because of mediation, settlements have the added benefit of giving people their day to be heard. This makes settlements more meaningful and more helpful in resolving disputes. Any thoughts? Technorati Tags: arbitration, ADR, law, legislation, Arbitration Fairness Act of 2009

Via the Adjunct Law Prof Blog, we learned that a new coalition, the Business Leaders for a Fair Economy is speaking out in support of the Employee Free Choice Act of 2009. The coalition released this ad, which claims that 1,000 business leaders agree the Employee Free Choice Act is key to restoring the country’s economy. The Act ( Senate version: S. 560 and Status; House version: H.R. 1409 and Status ) is currently in the U.S. Congress and as it relates to dispute resolution, it 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. As we blogged recently, George McGovern has openly opposed the passage of the Act. Let us know your thoughts about the Employee Free Choice Act! Technorati Tags: arbitration, ADR, law, legislation, Employee Free Choice Act of 2009

Within President Obama’s proposal to reform the financial services sector, A New Foundation: Rebuilding Financial Supervision and Regulation, there is a provision that directs the U.S. Securities and Exchange Commission (SEC) to study the use of mandatory arbitration clauses in investor contracts. Check out Professor Barbara Black’s discussion of the proposal in her post First Look at the Administration’s Financial Regulatory Reform and the Wall Street Journal’s post The Beginning of the End of Mandatory Arbitration? We welcome your commentary! Technorati Tags: arbitration, ADR, law, securities regulation

Need CLE Credits? Mark your calendars! The American Bar Association Section of Litigation will hold a live teleconference and webcast on July 14, 2009 titled “Deal or No Deal: Improving the Odds of Successful Mediation.” Reinsurance and Insurance expert Katherine Billingham from KB ReSolutions, Inc. and Randall Kiser from DecisionSet will present at the event. Randall’s article Lets Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations was featured recently in the New York Times. Donald R. Philbin, Jr., friend of this blog and adjunct professor at Pepperdine’s Straus Institute for Dispute Resolution will also speak at the event. Here are two excellent papers written by Don: The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in the Harvard Negotiation Law Review and Deal or No Deal? or Perhaps a Better Deal? The Impact of Improved Information published by CPR. Find out more about the event here.