On Tuesday, the Supreme Court of the United States denied a petition for certiorari that was filed by a group of former Ponzi scheme financial advisers.

Professor Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law, has written “Class Action Waivers in Employment Contracts: The Clash between the National Labor Relations Act and the Federal Arbitration Act,” 1 Preview of United States Supreme Court Cases 13 (Oct. 2, 2017); U of Texas Law, Public Law Research Paper No. 577. 

Last week, the United States Department of the Treasury issued a new report that calls for easing a variety of financial market rules.  The report titled “A Financial System That Creates Economic Opportunities Capital Markets” was prepared in response to Executive Order 13772, which was issued in early February.

The Fifth Circuit Court of Appeals has dismissed an appeal that was filed over a lower court’s order compelling arbitration due to lack of appellate jurisdiction.

By Holly Hayes Steve Mehta wrote a thoughtful and thought-provoking post on bad faith mediation on his blog Mediation Matters. Mr. Mehta references HB 2256, a Texas law that addresses three things as bad faith: failure to participate, failure to have a full authority representative present, and failing to provide necessary information. It authorizes the mediator to report this conduct. Mr. Mehta notes, “Interestingly, I do not think a statute like this would pass muster in California due to the limitations that the courts have imposed on the mediator’s ability to disclose information from the mediation. But even if this limitation were removed by statute (as an exception to confidentiality), is it reasonable to ask the mediator to disclose this bad faith action? Isn’t the mediator going to lose all credibility with one side or the other for reporting potential conduct? Moreover, aren’t many cases subject to interpretation. For example, what if a person has authority to settle from an insurance company but is limited by the authority given to him or her by the round table committee? Is that full authority or is that failure to provide a proper person? Is a client’s obstinate refusal to see the lack of merits in its position a failure to participate in the process? And what is necessary information? Does the party have to disclose all information? All relevant information? All unfavorable information? What if the party knows of a case or a theory that would destroy its position, but the other side doesn’t? The issue of bad faith is very complex and in my humble opinion cannot be defined as easily as the Texas Legislators seem to suggest.” I agree with Mr. Mehta’s conclusion, “We should be very careful about claiming bad faith, and should be even more careful in legislating bad faith in mediation.” Technorati Tags: 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.

By Holly Hayes As discussed in my previous post, Texas House Bill 2256 was signed into law on June 19, 2009. The bill provides a procedure for mediation of “balance billing,” which is the practice of billing insured patients for amounts or balances not covered by the insurer. HB 2256 also includes the following section on “bad faith” mediation: SUBCHAPTER C. BAD FAITH MEDIATION Sec. 1467.101. BAD FAITH. (a) The following conduct constitutes bad faith mediation for purposes of this chapter: (1) failing to participate in the mediation; (2) failing to provide information the mediator believes is necessary to facilitate an agreement; or (3) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement. (b) Failure to reach an agreement is not conclusive proof of bad faith mediation. (c) A mediator shall report bad faith mediation to the commissioner or the Texas Medical Board, as appropriate, following the conclusion of the mediation. Sec. 1467.102. PENALTIES. (a) Bad faith mediation, by a party other than the enrollee, is grounds for imposition of an administrative penalty by the regulatory agency that issued a license or certificate of authority to the party who committed the violation. (b) Except for good cause shown, on a report of a mediator and appropriate proof of bad faith mediation, the regulatory agency that issued the license or certificate of authority shall impose an administrative penalty. On a related note, Victoria Pynchon conducted recently an interesting survey about “bad faith” in negotiations. Lawyers, mediators, and clients came up with a list of 35 examples of what they considered “bad faith.” Find the survey results here. We welcome your comments about this post! 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.