U.S. Arbitration and Mediation Update | Feb. 2012

The following bills relating to alternative dispute resolution were introduced by the 112nd U.S. Congress. The session convened in Washington, D.C. on January 3, 2011 and will end on January 3, 2013.

Click on the bill number to read its text and on the status link to find the bill’s most recent legislative action.

Bills that passed:

• Patent Reform Act of 2011 (a.k.a. America Invents Act). The Act provides, among other things that parties to a derivation proceeding may resolve the dispute via arbitration. See Section 135(f). H.R. 1249; Status. H.R. 1249 was signed by President Obama on Sept. 16, 2011 and became Public Law No. 112-29.

• Department of Defense and Full-Year Continuing Appropriations Act of 2011. Provides, among other things, that “None of the funds appropriated or otherwise made available by this Act may be expended for any Federal contract for an amount in excess of $1,000,000 unless the contractor agrees not to—1) enter into any agreement with any of its employees or independent contractors that requires, as a condition of employment, that the employee or independent contractor agree to resolve through arbitration 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.1473; Status. The Act was signed by the President on April 15, 2011 and became Public Law No. 112-10.

Bills still pending:

• Consumer Mobile Fairness Act of 2011. The bill would amend title 9 of the United States Code to prohibit mandatory arbitration clauses in contracts for mobile service. S. 1652; Status.

• Disaster Recovery Act of 2011. The bill would create a dispute resolution program to facilitate an efficient recovery from major disasters. S. 1630; Status.

• Personal Data Protection and Breach Accountability Act of 2011. As introduced, the bill provides that “the rights and remedies afforded by this section shall not be abridged or precluded by any predispute arbitration agreement. S. 1535 IS; S. 1535 RS; Status.

• Emergency Jobs to Restore the American Dream Act. The bill would create an emergency jobs program during 2012 and 2013. The bill provides that each unit of general local government that is an entitlement community and each State that receives funding under the Act shall agree to the arbitration procedure described in the Act to resolve certain disputes. H.R. 2914; Status.

• American Specialty Agriculture Act. The Act would create a non-immigrant H-2C work visa program for agricultural workers and provides that any H-2C worker may, as a condition of employment with an employer, be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. H.R. 2847; Status.

• Arbitration Fairness Act of 2011. Declares that no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, or civil rights dispute. S.987; Status. H.R.1873; Status. Lat year, the ABA sent a letter to the sponsors of the legislation expressing concerns regarding certain specific language in the bill that could inadvertently void existing international commercial arbitration agreements and potentially discourage international commercial parties from engaging in commerce with U.S. parties.

• Labor Relations First Contract Negotiations Act of 2011. Amends the National Labor Relations Act to require mediation and, if necessary, binding arbitration of initial contract negotiation disputes. H.R.129; Status.

• Surface Transportation Board Reauthorization Act of 2011. Certain appropriations for the Surface Transportation Board, including requiring the Board to establish a binding arbitration process to resolve rail rate, practice, and common carrier service disputes. S.158; Status.

• Endocrine Disruptor Screening Enhancement Act of 2011. “In the event of any dispute about an appropriate share or a fair method of determining an appropriate share of applicable costs of the testing requirements in a test order, any person involved in the dispute may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service or a hearing with a regional office of the American Arbitration Association.” H.R.553; Status.

• Non-Federal Employee Whistleblower Protection Act of 2011. It includes provisions on the nonenforceability of waivers and arbitration of disputes. S.241; Status.

• National Guard Technician Equity Act. Provides for a technician’s rights of grievance, arbitration, appeal, and review beyond the current stage of the adjutant general of the jurisdiction concerned. H.R.1169; Status.

• Postal Operations Sustainment and Transformation Act of 2011. Section 401 of the Act includes arbitration and labor dispute guidelines. S.1010; Status.

• Soledad Canyon High Desert, California Public Lands Conservation and Management Act of 2011. Advises the use of arbitration under Subchapter IV of chapter 5 of section 5 of the USC. S.759; Status.

• FAA Air Transportation Modernization and Safety Improvement Act of 2011. Requires the FAA Administrator and employee bargaining representatives, if their own negotiations and the services of the Federal Mediation and Conciliation Service (FMCS) have failed to lead to an agreement, to submit their controversy to the Federal Service Impasses Panel, subject to specified procedures, for binding arbitration. H.R.658; Status. S. 223; Status.

• Medical Care Access Protection Act of 2011 (MCAP Act). The limitations within the act apply to arbitration, and nothing in the act is meant to supersede arbitration. S.197; Status.

• Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011. Provides that, “whether by arbitration or other means, in any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants.” S.1099; Status. S.218; Status. H.R.5; Status.

• U.S. Postal Service Improvements Act of 2011. Authorizes arbitration boards to consider the financial condition of the USPS in rendering decisions. S.353; Status.

• Preventing Homeowners from Foreclosure Act of 2011. Directs the Secretary of Housing and Urban Development (HUD) to implement a competitive grants program for states and local governmental entities to establish mediation programs to assist mortgagors under home mortgages facing foreclosure on such mortgages. H.R. 1131; Status.

• Local Jobs for America Act. The bill provides that each unit of general local government that is an entitlement community and each State that receives funding under this Act shall agree to the arbitration procedure described in Act to resolve certain disputes. H.R. 2828; Status.

• Preserving Homes and Communities Act of 2011. Directs the Secretary of HUD to: (1) establish a grant program to make competitive grants to state and local governments to establish mediation programs that assist mortgagors facing foreclosure, and (2) develop and implement a plan to monitor conditions and trends in home ownership and the mortgage industry and the effectiveness of public and private efforts to reduce mortgage defaults and foreclosures. S.489; Status. H.R.1477; Status.

• Restoring Democracy in the Workplace Act. Declares that a specified rule prescribed by the National Mediation Board relating to representation election procedures shall have no force or effect. H.R. 548; Status.

• Community Access Preservation Act (CAP). Amends the Communications Act of 1934. Sets forth provisions regarding: (1) LGS or state enforcement, (2) nonbinding mediation and court proceedings concerning disputed support amounts, and (3) prerequisites for an LGS to impose additional PEG use requirements. H.R.1746; Status.

• Department of Peace Act 2011. Establishes a Department of Peace. Sets forth the mission of the Department, including: (1) cultivation of peace as a national policy objective; and (2) development of policies that promote national and international conflict prevention, nonviolent intervention, mediation, peaceful conflict resolution, and structured conflict mediation. H.R.808; Status.

• Fair Arbitration Act of 2011. Amends the Federal Arbitration Act to establish certain procedures for arbitration clauses in contracts: the arbitration clause should have a printed heading in bold, capital letters entitled `arbitration clause’, which heading shall be printed in letters not smaller than 1/2 inch in height; explicitly state whether participation within the arbitration program is mandatory or optional; and identify a source that a consumer or employee can contact for additional information regarding costs and procedures. S.1186; Status.

• Medical Liability Procedural Reform Act of 2011. Provides grants to states for development, implementation, and evaluation of health care tribunals. H.R.314; Status.

• Empowering Patients First Act. Repeals the Patient Protection and Affordable Care Act and related health-care provisions and enacts in its place incentives to encourage health insurance coverage. The Act would limit recovery of attorneys’ contingency fees for representing claimants whether the recovery is by judgement, settlement, mediation, arbitration, or other form of alternative dispute resolution. H.R.105; Status. H.R. 3000; Status.

• Foreclosure Prevention and Sound Mortgage Servicing Act of 2011. Prohibits a mortgagee from requiring a borrower, as a condition of loss mitigation activities, to: (1) waive or limit rights to certain legal actions against the mortgagee or servicer as a condition of accepting an offer of any loss mitigation activities, or (2) agree to arbitration as a condition of receiving loan modification activities. H.R.1567; Status.

• Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2011. Establishes, among other things, a “loser pays rule.” In a health care lawsuit, in the event the statement of opinion by a qualified specialist appointed by the court in an affidavit is that there is no reasonable and meritorious cause for the filing of the action against the defendant, and the claimant does not substantially prevail by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution. H.R.2205; Status.

• Coastal Act of 2011. Provides, among other things, that the Administrator of the Federal Emergency Management Agency shall establish an arbitration panel to resolve appeals relating to the loss allocation system for resolving indeterminate claims, as defined by the Act. S.1091; Status.

• Mandatory Foreclosure Mediation Act. Establishes a mandatory mediation process for servicers of residential mortgages and borrowers. H.R. 3595; Status; S. 967; Status.

• Flood Insurance Reform and Modernization Act of 2011. The act would expand the use of mediation to resolve disputes in connection with major disasters. S. 1940; Status.

• Fighting Fraud to Protect Taxpayers Act. the bill would require the Justice Department to file detailed annual reports with Congress “…that describe…each settlement or compromise of any claim, suit, or other action entered into with the Department of Justice…that relates to an alleged violation of section 1031 of title 18, United States Code [‘Major Fraud Against the United States’], or section 3729 of title 31, United States Code [the ‘False Claims Act’]…and results from a claim for damages of more than $100,000.” S. 890; Status.

Stay tuned to Disputing for more legislative updates!

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