AMR gets TRO in suit to stop NMB scheduled union election

AMR Corp.'s American Airlines (AA) sued the National Mediation Board (NMB) to block it from holding a union election. The airline claimed under a new federal law that the union needs support from at least half of its ten thousand agents before holding an election among the largest group of nonunion workers at AA. Yesterday, U.S. District Judge Means found that AA was likely to prevail a lawsuit seeking to stop the election among passenger-service agents, and granted a temporary restraining order (TRO) on voting that was set to begin next week. The Communications Workers of America sought to represent AA's agents. The union had joined the case on the mediation board's side. AMR Corp. and AA sued the U.S. mediation board in federal district court because Congress raised the minimum support to fifty percent in an aviation bill signed into law in February. The mediation board sided with the union and decided this month to go ahead with an agent election. AMR Corp. and AA filed for bankruptcy protection last year and are seeking to void contracts with current unions of pilots, flight attendants and mechanics. A federal bankruptcy judge in New York is scheduled to rule on that request next week. See stories at http://usat.ly/LFMmf4 and http://on.msnbc.com/K5hFvL UPDATE 6/22/12: The court found the National Mediation Board used the wrong standard when it authorized the election. As such, the NMB “acted in excess of its delegated authority,” according to U.S. District Judge Means. The ruling comes as the airline seeks $1.25B in annual labor cost reductions as part of its bankruptcy reorganization. U.S. Bankruptcy Judge Lane postponed a ruling to next week on whether AA can scrap union contracts. See http://buswk.co/Nizd93

Did mediation save Triple Crown?

This week, a federal mediator settled a labor dispute at Belmont Park that threatened I’ll Have Another’s chance of winning thoroughbred racing’s first Triple Crown in more than 30 years. New York's Governor Cuomo urged both sides to reach agreement in a dispute over maintenance and starting gate workers at the racetrack. About 150 union members at NYRA’s tracks have been working without a contract for over a year after the previous contract was given a one-year extension. The workers authorized a strike to begin today, a day before the running of the Belmont Stakes, the final jewel in the Triple Crown. Now it's up to I’ll Have Another to become the first horse to win the coveted crown since Affirmed in 1978, so place your bets. See stories - http://nyp.st/LzPb0M and http://wapo.st/JIY58t UPDATE Noon 6/8: Guess not - would-be champion scratched from race - http://therail.blogs.nytimes.com/2012/06/08/ill-have-another-scratched-from-belmont-ending-triple-crown-bid/

Time Out for NFL Refs

NFL Referees and the National Football League are headed to federal mediation in negotiations over a new labor agreement. Reports are that the NFL has already instructed its scouts to begin preparing for the possibility that replacement officials could be used during the upcoming season if a deal is not struck. Last year, the Federal Mediation and Conciliation Service (an independent agency whose mission is to preserve and promote labor-management peace and cooperation) mediated negotiations between the league and the players’ union before the lockout. The league and the players did not return to that FMCS mediation, though negotiations resumed when litigation ensued, ultimately producing a 10-year labor agreement completed last summer. A federal court-appointed mediator oversaw settlement talks after players dissolved their union and filed an antitrust case against owners. In this matter, the refs and league are apparently intent on reaching a deal without litigation. See article - http://wapo.st/KXU6G7 and FMCS announcement http://www.fmcs.gov/internet/itemDetail.asp?categoryID=39&itemID=23700

Apple and Samsung CEOs to mediate Patents

CEOs of Apple and Samsung are set to mediate at a San Francisco federal courthouse tomorrow in the U.S. Northern District of California case of Apple, Inc. v. Samsung Electronics Co., Ltd. The U.S. Court of Appeals for the Federal Circuit found last Monday that the district court erred in deciding that Apple failed to show that it was likely to succeed on the merits, which means Apple may yet press for an injunction to block the sale of Samsung tablets. While the trial court considers the claims, Apple's Tim Cook and Samsung's Choi Gee-sung have been directed by a federal judge to appear for a court-supervised mediation. Apple and Samsung are bitter rivals in the electronics marketplace. While Samsung's smartphones and tablets run Android and compete with Apple's iOS products, Samsung is also a key component supplier to Apple. Apple has accused Samsung of infringing on the iPhone and iPad through products that run on Google's operating system, and Samsung has counter-sued on claims that Apple infringed its patents. The case is set for trial this summer. Magistrate Judge Joseph Spero will preside over the high-stakes IP mediation. I blogged about this case last fall, when Steve Jobs died. I still believe that a face to face meeting of the ultimate decision makers can benefit these companies and allow them to move on together in the mobile marketplace. See articles - http://trib.in/K7ETUJ and http://reut.rs/JBQJ8N

Moses or Solomon?

A federal judge ordered mediation with a magistrate judge in a lawsuit about whether the Ten Commandments can be displayed at a Virginia high school. U.S. District Judge Urbanski of Roanoke ordered the school board and the unnamed student and parent into mediation to see if a compromise can be reached over the biblical display. It's been reported that the judge suggested a deal could be made where the first four of the Ten Commandments are left off the display. This is unusual in cases of this type, which are typically all or nothing. For instance, in a pending Florida case, the Eleventh Circuit Court of Appeals recently heard arguments regarding Dixie County's Ten Commandments, where litigants are fighting over whether or not a six-ton model of the Ten Commandments in front of the county courthouse is unconstitutional and whether an anonymous plaintiff has standing in that matter. In the VA case, the judge issued a protective order allowing the parent and student involved in the case to remain anonymous during the suit which apparently came to fruition by a mutual agreement due to the threat of hostility by the community. The case involves a four-foot tall display of the Ten Commandments first hung on school walls following the Columbine school shooting in 1999. The display was taken down over a decade later by school officials, after receiving complaints, and replaced with a copy of the Declaration of Independence. In 2011, the Ten Commandments display was replaced following a backlash from parents and pastors. The display was then removed again after a month by school officials for no stated reason, prompting students to walk out of classrooms in protest. Will the tablets be split down to six, remain at ten or will there be none at all? See stories http://bit.ly/IYrWcx and http://bit.ly/JlIsaa

Megaupload Mediation

Controversial file-sharing services called cyber-lockers allow users to upload files to a server, which provides remote and secure storage of user content. Megaupload's users share their files with others and are encouraged to contribute content, which is often copyrighted. Services like this offer free limited access and further unrestricted use for a fee. U.S. District Judge Liam O'Grady recently directed lawyers from both sides of an Eastern District of Virginia case involving data which has been managed by service provider Carpathia Hosting since Megaupload was dismantled by authorities earlier this year to engage in mediation sessions in order to resolve the matter of archiving or deleting the information which had been stored by Megaupload users. The ruling temporarily preserves the infringing data which Carpathia claims it has had to spend as much as near $10K per day to maintain. Because the site went dark and Megaupload is no longer paying for server upkeep, but files are potential evidence of pirating, the hosting company wants relief while millions of legitimate users worldwide still want access to their data. In ancillary proceedings in New Zealand, Kim "Dotcom" Schmitz, the founder of controversial website, has been awarded back some of his previously confiscated fortune after it was revealed that a search warrant obtained by authorities was illegal. He and a number of the company's executives face extradition to America for trial. The issue of mediating litigation holds and preservation of evidence and related costs is a hot one in terms of ESI. This case brings to mind some recent entries of mine on E-Discovery mediation, as well as cost shifting and judge-directed ADR. It will be interesting to see if the rights of third-parties are respected in the process. See recent news items here: http://bit.ly/IAWczE and http://bit.ly/JaIn4E and http://bit.ly/Js8KG1

Orlando Mediator blog now an official ABA "blawg"

Just a brief post to announce that the American Bar Association has officially listed this blog as one of its law blogs or "blawgs." The ABA's Blawg Directory is promoted by the distinguished ABA Journal online and is touted as a comprehensive directory of continually updated law blogs. Help this blawg reach the "Blawg 100," an annual listing of the top one hundred blawgs in the law, now in its fifth year. Details will be posted when voting opens this year and the hope is that this blog will be the first devoted to mediation to make the list. Thanks for your readership and continued support of this endeavor which is a labor of love published in the interest of expanding the use of mediation and alternative dispute resolution in the 21st century. My mediation practice began in 2001 and continues to push the envelope in creative use of ADR. As an example, recent topics include the use of early ESI mediation to avoid protracted E-Discovery battles, allowing parties in litigation to re-focus their cases on the merits. I look forward to continuing exploring new topics on this blawg as trends develop to keep professional neutrals and advocates alike abreast of the latest in this field. Orlando Mediator can now be found as this URL on ABA: http://www.abajournal.com/blawg/Orlando_Mediator