Monday, June 19, 2017

NLRB Invalidates UBER Arbitration Agreements

Last week, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) ruled an Uber Technologies arbitration agreement was unlawful. Uber was requiring its software engineers to sign an agreement that compelled arbitration of claims against the company. The ALJ found language in the agreement ambiguous as to employee rights to file charges with the NLRB, even though a provision in the agreement explicitly stated those interested in filing administrative charges could do so at the website. Uber was ordered to rescind or revise its policy to more clearly state how employees can access NLRB processes. Uber is considering appealing the decision to the full NLRB, but has not yet done so. The U.S. Supreme Court is also currently considering a case in which employers are challenging the NLRB’s view that class action waivers in compulsory employment arbitration pacts violate the National Labor Relations Act (NLRA). Given this scrutiny, companies using or considering an arbitration program to resolve workplace disputes with employees should take care when drafting and implementing the agreements to account for recent NLRB decisions and guidance. Evidently, failure to do so may result in the program being partially or wholly invalidated. See more here-- and

Saturday, June 10, 2017

CMS Reversing Arbitration Ban

The Centers for Medicare & Medicaid Services (CMS) published a final rule for nursing homes just before last fall's election that included a provision prohibiting facilities from requiring pre-dispute binding arbitration to settle disputes over resident care. The final rule, which went into effect November 28, 2016 for facilities participating in the Medicare or Medicaid programs, was seen as a prohibition on regular practice in long-term care facilities of using resident agreement arbitration clauses upon admission. CMS just announced its intention to remove the ban on pre-dispute arbitration agreements. The rule, released after the agency abandoned its appeal in a lawsuit over the matter, would allow arbitration agreements that meet certain standards. For example, such documents would need to be written in plain language, be thoroughly explained to residents and their representatives, and be understood. A party in such agreement waives the rights to sue and to a trial by jury, to participate in a class action lawsuit, or to receive any type of judicial review apart from the very limited grounds applicable to setting aside arbitration decisions. The American Bar Association (ABA) previously commented that in many circumstances arbitration can be advantageous, and residents should continue to have the choice to use it to resolve disputes. Many recent court decisions, including the latest, Kindred v. Clark out of SCOTUS have upheld enforcing such agreements. See more here-- and and

Wednesday, May 31, 2017

Judge Vacates Emergency Order for Mediation Notes

This month, in an extremely rare move, a federal judge in Washington, D.C. first issued and later vacated an emergency order to preserve the notes of a mediation session in which an attorney allegedly threatened a female partner suing the firm for gender discrimination and pay inequity. Plaintiff, Jane Doe, alleges that another of her firm's attorneys illegally threatened retaliation against her during mediation, saying she was going to be terminated. Plaintiff desired the mediator’s notes in order to prove the exchange happened. The mediator was initially ordered to preserve notes and all other documents related to the session, with no indication whether material would ultimately be found relevant or admissible in the case. Such files are typically destroyed after mediation in order to preserve the confidentiality of the mediation process which allows the ability of parties to be open in session. Florida's Mediation Confidentiality and Privilege Act has very limited exceptions. Even in cases where mediation privilege is waived with consent of both parties, any records are produced in chambers in order to protect confidentiality. Allowing mediation notes to be used in lawsuits is quite disturbing and undermines the whole process, according to experts. JAMS, the ADR provider at this mediation, argued Doe should not have requested a preservation order for session notes because it already informed both parties that the notes would not be destroyed since they were subpoenaed. Doe acknowledged that JAMS said it would suspend its policy of destroying the records until issues surrounding the production of the documents in question are resolved, but asked the court to keep the preservation order in place. Plaintiff's motion was premised on an assertion that "a preservation order is necessary to preserve crucial evidence destined for immediate destruction" and that "absent a court order, it is virtually certain that this evidence will be lost." U.S. District Judge Amy Berman Jackson found since that did not appear to be the case, there is no longer any "emergency" warranting relief, and vacated her previous order. See Jane Doe v. Proskauer Rose LLP, case number 1:17-cv-00901 and more reported here-- and

Wednesday, May 17, 2017

AHLA Arbitration Rule Changes

I have served as an American Health Lawyers Association (AHLA) panel neutral dispute resolver for about a decade. In this role, I have arbitrated cases involving medical issues, medical group practices, employment issues and disputes involving long-term care facilities There are a few rule types AHLA has depending on the subject matter-- Commercial, Employment, and Consumer. These rules are typically incorporated by reference in health care contracts by agreement of the parties and utilized upon a disagreement arising between them. Effective April 30, 2017, AHLA Dispute Resolution Service rules have changed as follows: Employment Rule 2.4 now puts the onus on the employer to pay the filing fee, at least initially, as employers generally have greater resources than employees. Commercial, Employment, and Consumer Rule 5.1 now provides that no party must pay more than one filing fee per claim. In consumer cases and some employment cases, it protects a health care provider or employer who files a counterclaim from having to pay two filing fees for the same claim. Commercial, Employment, and Consumer Rule 5.6 now vests the authority to rule on a motion to consolidate claims in the arbitrator or panel of the first claim to be filed. The rule also provides that if claims are consolidated, they will be heard by the arbitrator or panel of the first claim to be filed. Previous versions of the rules did not have a process for addressing motions to consolidate. Commercial, Employment, and Consumer cases will be assessed a $400 administrative fee if they remain inactive for more than one year because a significant number of cases required case managers be compensated for time and effort to keep the matter open. If the parties do not pay the fee, the Dispute Resolution Service can close the case after sending a single follow-up message. If a claim is arbitrated in accordance with the version of the rules in force on the date it is filed. The new rules do not apply retroactively to claims filed prior to April 30, 2017. See more here--

Tuesday, May 9, 2017

What goes on in mediation, stays in mediation

Lately, there are reports in other states of settlements being unsealed. Typically, parties in a lawsuit agree among themselves, without assistance of courts, to craft a settlement agreement with a confidentiality clause and, if necessary, enforce such by separate contract action. Counsel may not completely control confidentiality if public officials or public entities are involved or if it may impact public health and safety. In the recent case of a Kansas boy who died in a water slide accident (full disclosure: I used to represent Wet 'n Wild water park in Orlando), the $20 million settlement with the family was confidential until the local paper got involved. The Kansas City Star intervened, arguing that the amounts paid by each defendant should be released to ensure those responsible for the minor’s death were held publicly accountable. The settlement is believed to be the largest for a minor ever in that region. The boy's father is apparently a Kansas legislator whose efforts increased regulation of amusement parks as a result. A companion case of unrelated adult sisters also settled. The newspaper argued the parties responsible should be held accountable such that a financial record of the settlement is needed. Reportedly, the ride will also be taken down as part of the terms. In Florida, our Mediation Confidentiality and Privilege Act governs the disclosure of such information. Confidentiality or privilege against disclosure of mediation communications must be waived by all parties, with limited exceptions and civil remedies are available for violations. Only information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its disclosure or use in mediation. Of course, petitions for approval of settlements are required for minors and contain details of the facts of a case, the issues of liability, the monetary amount of damages, and settlement amount sought, as well as attorney’s fees and costs. A judge then evaluates the settlement terms to assess whether they are in the best interests of the minor. It is important to note that the parent or guardian is obligated under the law to act in the best interests of the child. However, these deals often are confidential and statutorily exempt from the provisions of public records laws. See more here: and and and

Thursday, May 4, 2017

Meet the Mediator

Our mediation and arbitration firm, Upchurch Watson White & Max Mediation group, based in Central Florida with offices throughout the state, has been profiling our neutral panel members and this month is my turn: "Lawrence has a distinguished career in Alternative Dispute Resolution. He has been a professional neutral for sixteen years. In that capacity he has served as an arbitrator, mediator, and as a general magistrate. Through his bar association work he chaired the effort to modernize Florida Civil Procedure Rules to include E-Discovery. He has also been a member of the faculty at the Advanced Judicial College, Bench Bar conference, and The Masters Conference for Legal Professionals. You may have seen his articles in the Orange County Bar Association Briefs. He is also the author of the officially listed ABA Journal "Blawg" Orlando Mediator ( Lawrence is AV® rated and has been recognized as a Florida Trend Legal Elite in Arbitration & Mediation, selected as Mediator of the Month™ in Attorney at Law magazine, and identified as a SuperLawyer™. He serves on the Executive Council of The Florida Bar ADR Section ( He was even named a Litigation Trailblazer and Pioneer™ by the National Law Journal for his innovative work in alternative dispute resolution practice. Needless to say, he has been a very welcome addition to UWWM’s panel of professional neutrals. He brings a scholarly and informed perspective to the firm and to his clients. Given his impressive resume, I thought it might be interesting to discover something about Lawrence that we didn’t know." Aw-shucks! Read my colleague's interview of me here--

Thursday, April 27, 2017

United Settles With Passenger

Perhaps in unexpectedly quick fashion, Plaintiff Dr. David Dao settled today with United Airlines after he was and randomly selected and removed from an oversold flight to make room for commuting crew members. His lawyers claimed he suffered a concussion, broke his nose and lost teeth during the ordeal. Dao can be seen hitting his head on an armrest and later with blood on his face in cell phone videos posted by other passengers on the flight. The company has since promised it will no longer use officers to forcibly remove paying customers from its flights. The incident occurred on April 9th and has caused a huge backlash against the airline on social media ever since. Early settlements are possible when both sides have problems. Typically, such lawsuits would take some time to reach a conclusion. There were some accounts of the passenger resisting and other things allegedly in his past that may have affected his ability to recover damages. Initially, United referred to Dao as "disruptive and belligerent," and praised employees for following "established protocols." United was obviously keen on mitigating public opinion damage after so much outrage by the traveling public was expressed online. Surely, this will be a future case study for public relations and risk management. In an official statement, United said they reached "an amicable resolution of the unfortunate incident that occurred aboard flight 3411. We look forward to implementing the improvements we have announced, which will put our customers at the center of everything we do." There is no shame in early resolution on either side and the deal is to remain confidential. Still, there will be plenty of speculation on whether the payment was large or small and if it even contained a non-monetary component, such as free future travel. See more here-- and and