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, March 15, 2023
Non-binding Arb Rule Comments due 5/2!
The Civil Rules Standing Committee of The Florida Bar is proposing changes to Florida Rule of Civil Procedure 1.820 regarding hearing procedures for Non-Binding Arbitration. This informal and expeditious Alternative Dispute Resolution process is being utilized more and more to clear dockets backlogged from Covid, Hurricanes and general lack of trial dates. Judges in many Florida Circuit Courts are referring cases to this process and so some changes are being put out for comment. Among the changes are serving the award on the parties rather than filing with the court under seal. This is likely because many of our 67 counties have no pull down menu for filing under seal and can lead to awards being seen inadvertently by the judicial officer presiding over the case. Another change contemplates maintaining the original exhibits through the end of the case. I'm not sure arbitrators want to become deputy court clerks warehousing records, but parties can agree to do it themselves. Interested persons should send comments to: email@example.com before May 2, 2023. See more here-- https://tinyurl.com/58j7xa4t
Wednesday, March 1, 2023
Arb Going Back To Cali
The U.S. Court of Appeals for the Ninth Circuit recently blocked a California law that prohibited employers from requiring their workers to resolve legal disputes in private arbitration, ruling that it conflicts with federal law. A panel affirmed the district court’s grant of a preliminary injunction barring enforcement of California’s Assembly Bill (AB) 51 with respect to arbitration agreements governed by the Federal Arbitration Act (FAA). Since 2020, California was first to ban mandatory arbitration of all employment-related disputes in the wake of the #MeToo movement. New York and New Jersey similarly passed laws prohibiting mandatory arbitration of sexual harassment and discrimination claims, but California's statute was much broader. Employers were prohibited from requiring individuals to sign as a condition of employment or employment-related benefits arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act or Labor Code. In affirming the district court’s grant of a preliminary injunction, a majority of the Ninth Circuit panel used U.S. Supreme Court precedent that states rules burdening the formation of arbitration agreements are an obstacle to legislative intent of and preempted by the FAA. The court also noted the U.S. Court of Appeals for the First and Fourth Circuits reached similar conclusions when confronted with state laws that attempted to prevent parties from entering arbitration agreements. The court rejected arguments from the State of California that it should sever clauses that were deemed preempted by the FAA and leave the remainder of the law intact. The court found AB 51 could not be dissected as the statute’s provisions all work together to burden the formation of arbitration agreements and there was no authority in the legislation to sever the penalty portions of the law. If the State of California does not get a rehearing en banc or pursue further appeal, the matter will return to the district court to proceed for a final determination on the legality of AB 51. See reporting here-- https://bit.ly/3ZtxpoU and https://tinyurl.com/mvvfn6um and latest decision here-- https://tinyurl.com/54u4jukp
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