Friday, December 13, 2019

Florida Loses Water Wars

After rejecting a now deceased Special Master's ruling in favor of Florida and remanding to a new Special Master to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia, the U.S. Supreme Court this week received a recommendation not to grant Florida’s request for a decree equitably apportioning the waters of the Apalachicola-Chattahoochee-Flint River Basin. The Special Master found the evidence did not show harm to Florida caused by Georgia and that Georgia’s water use is reasonable. Additionally, the evidence did not show that the benefits of apportionment would substantially outweigh the potential harms. Florida asked for oral argument that took place last month, where it asserted the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers (which manages the reservoirs in the river system) is not a party to the case. Florida sought a cap on consumption that would alleviate past damage allegedly caused by Georgia. Georgia maintained any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry. Florida wanted to limit Georgia’s water consumption from the basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia claimed Florida failed to prove harm to aquatic species. This blog has followed the Water Wars for years in several other entries and it now appears this will be the ultimate conclusion in this case of original jurisdiction, absent further action and a presumed adoption of findings by SCOTUS. See more in very detailed report here--

Thursday, November 7, 2019

Orlando Mediator Top 10 Blog!

This month, my blog which will reach a decade old next year, received the honor of being named in good company with top dispute resolution blogs around the world. Orlando Mediator is recognized by Feedspot among such distinguished blogs published by big names like Thompson Reuters, Harvard Program on Negotiation and Kluwer. Feedspot's panelists chose this as number seven in the world for what their founder calls the most comprehensive list of Top 20 Dispute Resolution Blogs on the internet! Feedspot is an RSS reader that allows putting all of your online reading in one location. These feeds can, for example, allow a user to keep track of many different websites in a single news aggregator. I am humbled to know this labor of love for my chosen field is appreciated. The full list is available here--

Wednesday, October 30, 2019

California's Arbitration Ban

This month, a California bill prohibiting workplace arbitration was signed into law. Effective January 1, 2020, the new law criminalizes the use of mandatory arbitration agreements by making such a practice a misdemeanor offense. It prevents allegations of discrimination, harassment, and retaliation arising under that state’s Fair Employment and Housing Act from being subject to mandatory arbitration. This action sets up a direct conflict with the Federal Arbitration Act (FAA) and clear federal policy favoring arbitration. Challenges to constitutionality of this and other states' laws of this nature are coming. In recent terms, the U.S. Supreme Court reminded states of the predominance of federal policy regarding arbitration, striking down efforts to undermine the use of arbitration. States will likely argue that an arbitration agreement covering such claims is effectively a contract that is void as a matter of public policy. It will be argued such provisions fall within the FAA’s savings language, which preserves traditional state law defenses to arbitration agreements arising out of contract formation. At least one attorney commentator recognizes the problem with this argument-- that the underlying state policy established by the statute appears to directly conflict with the FAA’s underlying purposes, making the policy itself unconstitutional. As such, an unconstitutional policy should not void a contract whose terms are consistent with federal policy regarding dispute resolution. See more here-- and

Wednesday, October 2, 2019

ADR Section Mentoring Academy

Take your mediation practice to the next level with the Alternative Dispute Resolution (ADR) Section of The Florida Bar's inaugural Mentoring Academy later this month. Some of the state’s most experienced mediators, including some with whom I serve on the ADR Section Executive Council, will conduct this advanced-level Continuing Mediator Education (CME) and Continuing Legal Education (CLE) workshop. You will be coached on mediation strategies and receive instructive feedback on techniques. Also, increase your statewide network with a reception following the Friday evening panel discussion. Saturday’s sessions include lunch. This first-ever Mentoring Academy will be held October 25 – 26 at the University of South Florida’s Center for Advanced Medical Learning and Simulation (CAMLS) in downtown Tampa. The Florida Bar course is approved for 10 CLE/CME, 1 Ethics CLE/CME and 9 Professionalism CLE credits. The $425 tuition includes an annual membership in The Florida Bar ADR Section and those that are already section members can register for only $390. The Florida Bar ADR Section developed the Mentoring Academy in part because mediators have ethical obligations to advance the mediation profession. We are providing an opportunity for succeeding generations of mediators to have the benefit of experienced instruction from more seasoned mediators. Meaningful interaction between the mediator participants and workshop instructors is a key element of the academy. Don't miss out! Learn more here--

Thursday, September 19, 2019

CMS SNF Arbitration Rules Revised

A couple of years ago, the Centers for Medicare and Medicaid Services (CMS), an agency under Health and Human Services (HHS), had essentially barred any skilled nursing facility (SNF) that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of in court. It was the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in decades. The nursing home industry maintains arbitration offers a less costly alternative to court. Allowing more lawsuits, the industry says, could drive up costs and force some homes to close. This was the case in the early 2000s, when many excess verdicts were recorded in Florida, forcing players out of the state or out of business altogether. Lawyers who work with the elderly say that people are being admitted to nursing homes at one of the most stressful moments of their lives. When CMS essentially barred any agreements requiring residents to resolve any disputes in arbitration, federal courts were quick to issue injunctions in industry suits. Now, CMS has issued proposed regulations with an effective date this week. The final rule (CMS 3342-F) will allow CMS to regulate SNF arbitration agreements, but this does not apply to agreements signed before September 16, 2019. If a dispute is settled through arbitration, a copy of a signed agreement and arbitration award must be kept for five years and available for inspection by CMS. Some providers went back to court to claim the amended arbitration rule is in violation of the Federal Arbitration Act (FAA) and that neither CMS nor HHS has the “statutory authority” under the Medicare and Medicaid acts to regulate alternative dispute resolution. I have conducted long-term care arbitrations, usually serving as the chair of a panel. These are difficult cases and are sometimes better suited to be resolved in private before knowledgeable and fair neutrals, rather than presented to juries. Arbitration of health care cases can be streamlined for counsel, saving the parties costs and often providing a quicker result than the courts. See more in trade publications here-- and

Thursday, August 29, 2019

Hurricane Mediations Sure to Come

With the likely path of Hurricane Dorian to include Florida, homeowners will want to check their insurance information and keep policy numbers handy should claims arise. I have conducted many mediations over the past few hurricane seasons and as is expected, these claims take time to adjust and longer to litigate and eventually mediate. Past storm litigation continues for thousands of residents previously encountering losses. Keep in mind, under state law, a hurricane is defined in Section 627.4025(2)(c), Florida Statutes, as a storm system that has been declared a “hurricane” by the National Hurricane Center of the National Weather Service. According to Section 627.4025, Florida Statutes, the Hurricane Deductible applies only in the event of a named hurricane. The duration of a hurricane in which the Hurricane Deductible would apply includes the time period: 1) Beginning at the time a hurricane watch or warning is issued for any part of Florida by the National Hurricane Center and 2) Ending 72 hours following the termination of the last hurricane watch or hurricane warning issued for any part of Florida by the National Hurricane Center. Florida's Department of Consumer Services usually updates information in the aftermath of a named storm and lists contact information for most insurance carriers. Stay safe and see more here-- and

Wednesday, August 7, 2019

Join us 8/28 for free CLE/CME on Design Thinking in Mediation

Join me and my new UWWM colleague, April Walker, for a free CLE Webinar at noon Wednesday, August 28, 2019. We will explore the application of design thinking to the mediation process in Florida. Those who like to go beyond the day-to-day of alternative dispute resolution and apply other rubrics to improve outcomes should attend this interesting program. The formal title is "Design Thinking Applied to Mediation: Taking Advantage of the Informal and Non-Adversarial Nature of the Mediation Process" and it will look at principles that are successfully employed in other disciplines. For over fifty years, creative problem-solving approach designers have used these techniques to create new values that are different and make a positive impact. We intend to offer some ideas in the problem-solving role of mediation and to encourage some innovation in the daily approach of settling lawsuits. This complimentary CLE is approved by the Florida Bar for 1.0 hour of general CLE credit. After registering, you will receive a confirmation email containing information about joining the webinar.

Wednesday, July 17, 2019

Orange County ODR Pilot Program

Today at the Orange County Bar Association's Judicial Relations Committee meeting, it was announced that Small Claims parties in the Ninth Judicial Circuit Court Court will soon be able to utilize an online dispute resolution (ODR) program for a total cost of $25. The vendor, Tyler Technologies, is already known to court administration because of its Odyssey case management system license. This add-on service uses Modria software which was acquired by Tyler after success demonstrated in resolving business to consumer e-commerce transactions. Chief Judge Myers said the first 1,396 mediation cases would be handled at no cost to the court. Since 1992, there has been a $15,000 limit on damages in civil suits filed on the county court level. With the recent bill signed by Governor DeSantis increasing the small claims amount in controversy limit to $30,000 come January 1, 2020, the county judges are preparing for how to handle more volume. The limit goes even higher-- to $50,000 by January 1, 2022. The $15,000 limit remains in place for cases filed before December 31, 2019. The plan, according to a representative at the Orange County Clerk's office, is to roll something out this fall. ODR is touted as helping individuals resolve legal cases without having to set foot in a courtroom. The concept is a simple back and forth online negotiation replaces the need to appear or take time off work to spend time in a government building. See legislation here-- and current programs here--

Thursday, July 11, 2019

Water Wars Persist

Last summer, the U.S. Supreme Court substituted a court-appointed Special Master (since deceased) after rejecting his ruling recommending Florida had not proven its case “by clear and convincing evidence” that imposing a cap on Georgia’s water use would benefit Florida water systems and remanding because he “applied too strict a standard” in rejecting Florida’s claim. The rejected recommended ruling in the decades-long Water Wars favored Georgia. In the year after swapping for Special Master Honorable Paul J. Kelly, Jr., a Senior Judge on the U.S. Court of Appeals for the Tenth Circuit, to make further findings regarding Florida's claim it suffered harm from the overconsumption of water by Georgia, not much has transpired. This past spring, Florida submitted a motion for oral argument which remains pending. Florida asserts the first Special Master found that Georgia’s upstream water use was unreasonable and that the Supreme Court already rejected an additional finding that nothing could be done because the U.S. Army Corps of Engineers, which manages the reservoirs in the river system, is not a party to the case. Florida seeks a cap on consumption that would alleviate past damage allegedly caused by Georgia. Georgia’s still claims any limits on its water use would undermine its economy, including the growth of the Atlanta area and the state’s agriculture industry in southwestern Georgia. Florida wants to limit Georgia’s water consumption from the Apalachicola-Chattahoochee-Flint River Basin, including Lake Lanier, to 1992 levels and to get reparations for alleged economic and environmental harm to Apalachicola's oyster fisheries from drought. Georgia maintains Florida has failed to prove harm to the aquatic species. This blog has followed the Water Wars for years in other entries. Hopefully, a resolution will occur this year. See more detail in docket here--

Monday, June 24, 2019

U.S. Women's Soccer Mediation

The World Cup competing U.S. women’s national team (USWNT) players and the U.S. Soccer Federation will mediate over pay equity and workplace dignity issues following the conclusion of the tournament in France next month. U.S. Soccer and the 28 USWNT players suing the federation have tentatively agreed to mediation in the equal pay fight on the disparity between U.S. men's and women's national team players. Women players engaged in legal action, including filing with the U.S. Equal Employment Opportunity Commission and suing U.S. Soccer in federal District Courts. The USWNT Players’ Association and U.S. Soccer had agreed to a new collective bargaining agreement that ensured games would continue to be played, but failed to resolve many grievances like workplace discrimination on the basis of gender. Salary and workplace discrepancies are highlighted by global dominance of the U.S. women, especially when compared to the lackluster men's team. USWNT players contend they earn 62% less than males and have inferior travel, second-rate training facilities and more dangerous playing conditions. Employers accused of Equal Pay Act violations typically insist lawful explanations exist for differences in pay between male and female workers. The women also contend U.S. Soccer is violating Title VII of the Civil Rights Act of 1964 which makes it illegal for employers to use the gender of workers to determine pay. Employers often rebut the assertion that gender played any role in pay calculations citing supervisors’ evaluations of employees to distinguish them on bases other than their sex. Of course, U.S. Soccer rejects these and related claims, saying players negotiated the very rules that they are now contesting. It will be interesting to see what becomes of this dispute and whether the U.S. women can come home as champions heading into the negotiations. See full stories here-- and

Tuesday, June 18, 2019

Florida Appellate Mediator Certification Changes

Under a new Administrative Order of The Supreme Court of Florida, No. AOSC19-26 governing certification of mediators, several changes to the continuing mediator education (CME) requirements have been implemented. News of the changes came to presently certified mediators via the Florida Dispute Resolution Center (DRC), including the removal of the four-hour appellate-specific CME requirement. I have been mediating appellate cases since 2001, before the statewide certification existed. In 2001, the Fifth District Court of Appeal instituted a pilot program referring appeals to mediation before the expense of briefing. The pilot was deemed a success by the court and adopted as a permanent program in 2004. The program is touted as achieving the goals of saving litigants time and money by resolving disputes more quickly and less expensively than the appeal process. This includes helping parties and counsel to narrow and clarify issues for appeal so that cases can be expedited. For many years, the results have hovered around a third of cases being resolved through the appellate mediation process. Those of us who participated as mediators were grandfathered into the statewide certification which requires four hours of initial instruction by a recognized DRC approved trainer. Until now, four additional hours of CME was required every two years for recertification. However, be advised that effective immediately, certified appellate mediators must maintain only a certification in either of family, circuit or dependency mediation and complete only the standard CME requirements in order to renew as a certified appellate mediator. See more here--

Tuesday, May 28, 2019

Florida Mediator Rule Changes Coming

The Supreme Court of Florida's Committee on Alternative Dispute Resolution Rules and Policy (Rules and Policy Committee) today invited all interested persons to comment on proposed amendments to small claims, county, civil, family, juvenile, and appellate state court rules of procedure regarding mediation. According to the Rules and Policy Committee, the amendments are intended to protect the public by ensuring that any individual who mediates cases pending before any state court shall be subject to the ethical standards and discipline procedures in the Florida Rules for Certified and Court-Appointed Mediators. The amendments originated as Rules and Policy Committee work product that was circulated to the ADR community in 2017. The Executive Council of the ADR Section of The Florida Bar deliberated on this matter then and voted in favor of a mandatory certification for court connected cases. However, after receiving feedback and engaging in its own careful deliberation, the Rules and Policy Committee revised its proposal to meet the interests of both the ADR and legal communities while continuing to meet the goals of the Long-Range Strategic Plan for the Florida Judicial Branch 2016-2021, to “maintain a professional, ethical and skilled judiciary and workforce.” The 2017 amendments proposed that all pending court cases be mediated by a Florida Supreme Court certified mediator. The 2019 amendments are now offered instead of those amendments. The amendment to each set of procedural rules will require that any mediator who mediates a state court action does so subject to the ethical standards the Supreme Court has imposed on all certified and court-appointed mediators irrespective of whether the mediator is certified, non-certified, or court-appointed. All individuals who mediate cases pending before any state court shall be subject to discipline and the existing procedures. Please send comments for the Committee to the Florida Dispute Resolution Center (DRC) by July 8, 2019, to You may comments send via mail to: Florida Dispute Resolution Center, Supreme Court Building, 500 S. Duval Street, Tallahassee, Florida 32399; or fax at (850) 922-9290

Thursday, May 16, 2019

Class Arbitration Attacked Again

Recent rulings from the U.S. Supreme Court have supported the underlying concept codified in the Federal Arbitration Act (FAA), but have demanded clarity in the drafting of agreements seeking implementation of an arbitration process through which to dispose of disputes. Recently, in Lamps Plus, Inc. v. Varela, the Court found neither silence nor ambiguity in an arbitration agreement regarding the permissibility of class arbitration enables a court to find that the parties agreed to permit class arbitration. According to the Court, consent is fundamental to arbitration. Arbitration agreements must be express and unambiguous because it would so drastically alter the nature of the proceeding from the simple bilateral process that was envisioned in the FAA. Rules of ADR organizations such as JAMS or AAA incorporated by reference into the agreement that contain ancillary rules under which arbitrators could conduct class proceedings had no effect on the Court’s decision. This implies that mere incorporation of other procedural rules is not a sufficient basis to infer an agreement to permit class arbitration either. The Court emphasized that class arbitration proceedings are fundamentally different in nature from bilateral arbitrations envisioned by the FAA. Class arbitrations sacrifice the informality of the contemplated bilateral process, as well as its speed, simplicity, and relative inexpensiveness, and instead produce a slower, more costly, and more complex process that looks like “the litigation it was meant to displace." See full analysis here-- and opinion here--

Wednesday, April 24, 2019

May Webinars at Noon 5/1 & 5/9

I'll be participating in two webinars you can attend during lunch at your desk next month on May 1st and May 9th. The first presentation is brought to you through The Florida Bar Alternative Dispute Resolution (ADR) Section and will provide an overview of the latest in Online Dispute Resolution (ODR). This live audio webcast will examine different emerging ODR processes that are currently available. We'll look at the benefits of using such processes, the technology used to implement those processes and the ethical issues presented when engaging in virtual or online mediation. The Florida Bar has approved the online program for 1.0 General / 1.0 Ethics / 1.0 Technology Continuing Legal Education (CLE) credits. Of course, certified mediators may also submit as Continuing Mediator Eduction (CME) credit to the Dispute Resolution Center (DRC) upon their renewal. As a bonus, if you are a member of our ADR Section, you qualify for a $10 discount on the $50 registration fee. The webcast will remain accessible for 90 days after purchase. I'm moderating a panel featuring my ADR Section colleagues Christy Foley of Winter Park and Natalie Paskiewicz of St. Petersburg. See more information here-- Register here-- The second presentation is complimentary and focuses on techniques for closing gaps at mediation. Our program on the GoToWebinar platform will feature my firm colleagues Michelle Jernigan and Jeff Fleming. We will explore scenarios for getting to yes. The course is designed for any attorney who negotiates during mediation and wants to better understand what skilled mediators do to narrow gaps that develop or widen. The webinar will provide 1.0 General CLE hours from The Florida Bar and you can register here--

Wednesday, April 10, 2019

Fla Bar ADR Section Launches New Website

This month, the Florida Bar Alternative Dispute Resolution Section updated the website which I created at its inception. Our new platform will be able to provide more features to members of the section. The ADR Section was founded nearly a decade ago and provides a forum for lawyers interested in alternative dispute resolution and for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. Any member in good standing of The Florida Bar interested in the purpose of the section is eligible for membership upon application and payment of its annual dues and can add this at the time of general bar dues renewal in the summer. The ADR Section keeps its membership informed and updated regarding legislation, rules and policies in connection with mediation, arbitration and other ADR processes. We also produce quality continuing legal education programs in the field. Next month, I will moderate a webinar focused on new developments in Online Dispute Resolution or ODR. The presentation will examine the different online dispute resolution processes that are available, the benefits of such processes, the technology used to implement those processes. The See more at

Tuesday, March 12, 2019

NFL Claims Admin Audit Power Questioned

A claims administrator implementing the $1 billion NFL concussion litigation settlement is fighting efforts to limit auditing former players’ claims multiple times. Under the terms of the settlement agreement, the firm alleges it is not limited to auditing claims a single time to stop ineligible payments. Reportedly, the settlement agreement and audit rules adopted by the special master allow audit of claims at any time in the process, even after payment. They assert a need to re-evaluate a player and his claim in the audit process whenever questions about the legitimacy of a player’s claimed diagnosis arise. A group of thirty claims brought by the same counsel were put into a second audit. He contended that forcing the claims into multiple rounds of audits goes against the broader settlement agreement and damages his clients’ due process rights. Reasons for re-examination of claims given include switching doctors while claims were being audited, and eventually using a doctor who allegedly gave a high neurocognitive impairment diagnosis to a former player, while continuing to work as a corporate spokesman and host public events. It is feared the settlement program would attract unscrupulous persons if claims were investigated in limited scenarios. The NFL and co-class counsel for the players did not yet comment. See full story here-- and NFL concussion site regarding some 20,532 claimants here--

Thursday, March 7, 2019

Condo ADR Bill in FL Legislature

The Florida Legislature began its session this week and there is already a bill out of drafting relating to alternative dispute resolution (ADR). The act would amend Section 34.01, Florida Statutes, expanding the jurisdiction of county courts to include certain disputes occurring in condominium and cooperative associations. It would also amend Section 718.103, Florida Statutes, defining the term “condominium documents” and Section 718.112 conforming provisions to changes made by the act, requiring that a provision for mandatory mediation, rather than nonbinding arbitration, be included in association bylaws. The language also amends Section 718.117, revising how a unit owner or lienor may contest a plan of termination and amending Section 718.1255, revising the requirements for ADR in condominium associations and providing a form for the written demand an aggrieved party is required to serve on a responding party, as well as providing requirements for the service of a statutory demand to participate in presuit mediation and the response to such service. The legislation would provide requirements for mediators selected by the parties and that parties to equally share the costs of presuit mediation, while authorizing a mediator to require advance payment of fees and costs. Under the law, presuit mediation proceedings would be conducted in accordance with Chapter 44, Florida Statutes, in addition to the Florida Rules of Civil Procedure and authorize a representative from an association’s insurance carrier to attend presuit mediation conferences. The likely effective date would be July 1, 2019. Search for more here--

Monday, February 18, 2019

NFL Settles with QB Kaepernick

Quarterback Colin Kaepernick and former teammate Eric Reid reached a settlement with the NFL regarding their collusion grievance against the NFL. Both players were alleging league owners colluded to keep them out of the NFL. The decision to kneel during the national anthem made Kaepernick a divisive sports figure. Kaepernick either sat on the bench or kneeled during “The Star-Spangled Banner” before each game in protest for oppression of people of color and ongoing issues with police brutality. The last time Kaepernick played was in 2016 when he went 1-10 with the San Francisco 49ers. However, that litigation appears to be over and Kaepernick’s attorney said he still wants to play in the NFL. In a joint statement last week, the parties explained only that they had engaged in an ongoing dialogue with representatives and as a a result of those discussions, decided to resolve the pending grievances. Of course, the resolution of the matter is subject to a confidentiality agreement and so they state there will be no further comment by any party. Despite this, the media has continued to speculate on the settlement and in one report, Mike Freeman said his sources were speculating that the payout was in the $60-80 million range. Others, like Dan Patrick revealed that a source told him that the settlement could be as low as the $5 million range. Still others like Mike Florio, despite stating most settlements require the parties to keep the details of the deal quiet and confidential, wonders when the details will leak. He goes on to say the NFL’s 32 teams will know the amount, because they’ll each be paying a share and that it takes only one owner to get the number out, making it impossible for the league office to track down the leak. Only time will tell. See news coverage here-- and and and NFL statement--

Thursday, February 14, 2019

Venezuelan Mediation?

This week, Pope Francis reportedly turned down a mediation request from embattled Venezuelan President Nicolas Maduro, indicating conditions aren't ripe for the Vatican to step in and help mediate in the country's dramatic political crisis. Italian newspapers said the socialist leader had written to Francis to ask the Pontiff's help in launching talks with the opposition leader and purported president, Juan Guaidó, whom many including the United States have recognized as legitimate interim president. Guaidó invoked a constitutional provision to assume the presidency three weeks ago, arguing that Maduro’s re-election was a sham. The Argentine-born Pope lamented in reply to Maduro that Venezuelan Bishops were frustrated in their efforts to help defuse political and social tensions in the country, where much of the population lacks adequate food and medicine in a brewing humanitarian crisis. His letter to Maduro indicated Francis felt an inadequate government response to the willingness by church officials to facilitate dialogue in Venezuela. The Pope said all intentions aimed at reconciliation were effectively thwarted since, despite various meetings, there was no follow-up with concrete gestures to implement agreed-upon measures. While Pope Francis favors dialogue, he says only when it places the common good over all other interests and when it is aimed at achieving unity and peace. Despite diplomatic language in the letter, Pope Francis maintains,"'Yes, I can be a mediator, but at my conditions.'" See full news report here--

Wednesday, January 30, 2019

SCOTUS - Second Unanimous Arbitration Opinion

This month, the Supreme Court of the United States handed down its second unanimous opinion on arbitration. In New Prime Inc. v. Oliveira, which arose out of an employment dispute between a trucking company and driver, the Court found while the Federal Arbitration Act (FAA) authorizes a court to compel arbitration if parties agreed to arbitrate, the statute also defines the agreements to which it applies. Before a court enforces an agreement to arbitrate, it must first ensure the agreement is one the FAA authorizes courts to enforce. Specifically at issue was whether an exception to the rule in the FAA that obligates courts to enforce arbitration agreements that involve interstate commerce applied. Section I of the FAA exempts contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce from arbitration. The opinion explains while a private agreement may be crystal clear and require arbitration of every question under the sun, that does not necessarily mean the FAA authorizes courts to stay litigation and send the parties to an arbitral forum. In this instance, companies engaged in interstate or foreign transportation should take notice that a trucker’s status as an independent contractor no longer protects the company’s arbitration agreement with him or her under the FAA. Interestingly, despite a conservative majority, the justices chose to interpret the FAA in a way that likely expands worker’s rights. Justice Gorsuch, who authored the opinion, did not deny the vigor of the court’s embrace of a liberal federal policy favoring arbitration agreements. However, in this case, the text seemed clear enough to persuade all of the justices to reject the claim for arbitration. See commentaries here-- and and opinion here--

Wednesday, January 9, 2019

SCOTUS: Arbitrability is for Arbitrator not Court

This week, in what happened to be Justice Kavanaugh's first opinion on the U.S. Supreme Court, an arbitration ruling in a case centered on whether courts can prevent arbitrators from deciding if an issue can be arbitrated at all. Many parties prefer to arbitrate claims because the process is sometimes cheaper and faster than traditional litigation in court which also carries a greater risk of large damages awards by juries. This case arose in a contract dispute between a dental equipment distributor and a manufacturer. Their contract provided that disputes arising from the agreement would be resolved in arbitration, except in instances where one party sought an injunction. The Supreme Court found unanimously in Henry Schein, Inc. v. Archer & White Sales, Inc., that under the Federal Arbitration Act (FAA), a lower court must enforce an arbitration agreement that requires the arbitrator to decide whether a dispute should be decided in arbitration, regardless of the court’s view of the merits of the request for arbitration. When a contract allows arbitrators to decide whether a dispute can be resolved through arbitration, “a court may not override the contract." The holding states the “wholly groundless” exception to arbitrability is inconsistent with the FAA and Court precedent. Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The Supreme Court has long held that the FAA allows the parties to a contract to decide whether an arbitration agreement will extend to those gateway questions, explaining that courts must compel arbitration of the gateway questions whenever the agreement includes “clear and unmistakable evidence” that the parties delegated the decision of those questions to the arbitrator. See stories here-- and and opinion here--