Orlando Mediator Lawrence Kolin explores current issues in Alternative Dispute Resolution, including mediation and arbitration of complex cases by neutrals resulting in settlement of state and federal litigation and appeals. This blog covers a wide variety of topics-- local, national, and international-- and includes the latest on technology and Online Dispute Resolution affecting sophisticated lawyers and parties to lawsuits.
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-- https://bit.ly/2Gdqhb2 and https://bit.ly/2CvAxro and opinion here-- https://bit.ly/2CyEpbd
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-- https://bit.ly/2FqySH1 and https://fxn.ws/2M2c41x and opinion here-- https://bit.ly/2CXAgPw
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