Arbitrator Goes Postal Union

Nine thousand U.S. Postal Service jobs will become union positions over the next quarter in an arbitration ruling this month that requires post offices use bargaining-unit employees at sites with reduced operating hours. An arbitrator found the USPS violated an agreement with the American Postal Workers Union by using part-time employees instead of union clerks at many slower post offices where hours were reduced in 2012 to save the agency money. Union clerks will now be used at facilities that have cut back hours. Workers filed the grievance against the USPS after a reduction in hours at low-traffic post offices which was a compromise when labor groups and Congressmen pushed back against earlier plans to close them. Prior to this arbitration ruling, the postal service used part-timers to fill the positions. In more than 13,000 offices, less than 350 jobs were held by union clerks. The arbitrator found that the arrangement of remotely managed post offices was not the typical consolidation that the parties have routinely dealt with for decades. See more here-- http://wapo.st/1snvIrX and http://bit.ly/1prhn62 and a copy of the ruling http://www.apwu.org/sites/apwu/files/resource-files/POStPlan_Staffing_090514.pdf

ICANN Registration Restrictions Dispute Resolution Procedure (RRDRP)

The Internet Corporation for Assigned Names and Numbers (ICANN) is the not-for-profit corporation with participants from the world over dedicated to keeping the internet secure, stable and interoperable. It promotes competition and develops policy on unique identifiers. ICANN's RRDRP is intended to address circumstances in which a community-based "New gTLD" Registry Operator deviates from the registration restrictions outlined in its Registry Agreement. This rubric addresses circumstances in which a New gTLD deviates from community-based restrictions. A "community-based" gTLD is one operated for the benefit of a clearly delineated community, restricting the individuals and entities that may register domains in the gTLD. To have standing, the complainant must show that it is an established institution associated with a defined community related to the gTLD string at issue. Complainants must establish that the defined community consists of a restricted population that the gTLD supports. To maintain a successful claim, they must prove that the gTLD operator violated its own community-based restrictions in its registry agreement and that there is a measurable harm to the complainant and the community at issue. Under the RRDRP, parties are encouraged-- but not required-- to participate in informal negotiations or mediation at any time throughout the dispute resolution process. However, the conducting of any such settlement negotiation is not, standing alone, a reason to suspend any deadline under the proceedings. See more information here-- http://bit.ly/1uDKgS3 and http://bit.ly/ZmV0JR

AAA's New Consumer Arbitration Rules

This month, the American Arbitration Association's new Consumer Arbitration Rules became effective. According to AAA, these rules apply when arbitration clauses exist in agreements between individual consumers and businesses where a business has standardized, systematic application of arbitration clauses to its customers and where the terms and conditions of the purchase of standardized, consumable goods or services are non-negotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices. The product or service must be for personal or household use. The AAA will have discretion to apply the Consumer Arbitration Rules and parties can bring any disputes concerning the application or non-application to the attention of the arbitrator. Businesses are required to submit their consumer arbitration clause to the AAA for review and determination that the clause substantially and materially complies with the due process standards of the AAA’s Consumer Due Process Protocol and the amended Consumer Rules. Businesses will only be included in the registry after the AAA reviews a submitted clause, receives the required fee and determines that it will arbitrate a consumer-related dispute under the clause. The fee has been lowered to $500 for clauses submitted in 2015. AAA will charge an annual renewal fee starting in 2016. Each variation of the business’s arbitration clause must be separately registered. If a business has not registered its consumer clause prior to the filing of a consumer case, the AAA will require that the business register its clause at that time for an additional fee of $250 for an expedited review. Additionally, any subsequent revisions to a currently registered arbitration clause must be resubmitted for review. A fee of $500 will be assessed to review revisions. See more here-- http://bit.ly/Z7rSWJ and http://bit.ly/1lAgU6l

Mediator to Oversee Bank of America Settlement

A law professor and mediator will oversee billions in consumer relief for struggling borrowers as part of the settlement by Bank of America with the federal government. Veteran dispute resolver, Eric Green, will give or withhold credit on mortgage modifications and home loans for low income borrowers. Green served as mediator on various Bank of America cases. In 2011, a federal judge approved a $410 million settlement in a class-action lawsuit involving some 13 million customers affected by debit card overdrafts. That suit claimed the bank processed its debit card transactions from highest to lowest dollar amounts in order to maximize fees customers paid. That settlement sparked criticism because it gave some customers only a fraction of what they paid. Of this new record $16.65 billion settlement, $9.65 billion will be in cash payments to various federal agencies and six states, with the rest in consumer aid. The Department of Justice is restricted from overseeing Green, who will provide quarterly reports. Bank of America has until summer 2018, to provide the relief. Interestingly, Green did not play a role in the terms or in mediating the settlement. If the mediator determines Bank of America has not complied by the deadline, the bank would be required to make cash payments equal to its shortfall. That money would go to organizations that provide housing counseling and foreclosure prevention. See stories here-- http://bit.ly/1smjUBu and http://bit.ly/1qdZJam

Federal Judge Orders Investigation of Arbitral Awards

Interestingly, a federal judge has ordered an investigation into why a municipality consistently loses arbitration cases with officers who are appealing discipline. U.S. District Judge Thelton Henderson opined that an arbitrator's recent decision overturning the termination of a the City of Oakland police officer videotaped tossing a tear gas grenade into a crowd of Occupy Oakland protesters struck at the heart of a reform he oversees. The judge maintains reversal of appropriate discipline at arbitration undermines the very objectives of a court-sanctioned reform effort following a police brutality scandal a decade ago. Reportedly, of the last fifteen arbitration cases by police officers challenging punishments, discipline was revoked in seven cases and reduced in five others, leaving only three wins for the city. Judge Henderson's unusual order apparently gives wide latitude to study every facet of the police department's investigation of officers and how the City Attorney's office prepares arbitration cases. The investigation will include a review into whether the city is getting adequate legal representation for arbitration hearings, whether it is selecting qualified expert witnesses and whether it should change the process for selecting arbitrators. It will also investigate the police department's discipline process, which officers have claimed is biased against them. See story here-- http://bit.ly/1pxuBTo

Met Mediation

The U.S. Federal Mediation and Conciliation Service (FMCS) is facilitating negotiations with the Metropolitan Opera, the American Federation of Musicians, and the American Guild of Musical Artists. In a tactic I have employed successfully in the past, the parties retained an independent financial analyst and highly regarded industry expert, to conduct a confidential study of finances in an effort to help reach new labor agreements. As a result, the Met will further extend the contracts for approximately a week to allow for the completion and evaluation of the report. FMCS, consistent with its practice, will not comment during this period, due to the highly sensitive nature of these discussions and confidentiality of this process. Sometimes using facts and figures within the confines of mediation makes the parties more comfortable with coming to a deal instead of arguing with CPAs in a courtroom. See more here--http://bit.ly/1smUJB2 

FL Supreme Court Limits Senior Judge Mediators

Twenty years ago, the Supreme Court of Florida authorized senior judges to serve as mediators in a new Code of Judicial Conduct, despite concerns about the propriety of a senior judge acting as both a mediator and an assigned senior judge. Last month, following proposed amendments published for comment that would have prohibited dual service, the court again decided to allow senior judges to continue to serve as mediators in light of significant opposition to the proposed prohibition. However, the Court chose to add new limiting provisions, such that Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge. Additionally, mediation firms affiliated with judges are required to follow the same prohibitions on advertising and promotion that are imposed on judges. A potential exists that senior judges serving as paid mediators could be seen as exploiting their judicial position or lending the prestige of judicial office to advance the private interests of a judge or a mediation firm with which that judge may associate, or otherwise running afoul of the Code of Conduct. These amendments to the Code of Judicial Conduct, Rules for Certified and Court Appointed Mediators, Florida Rules of Civil Procedure, Rules of Judicial Administration, Rules of Juvenile Procedure, and the Florida Family Law Rules become effective on October 1, 2014 and are seen as additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business. See full opinion here-- http://www.floridasupremecourt.org/decisions/2014/sc13-1732.pdf