ODR Adopted in EU

Online Dispute Resolution or "ODR" has been a niche area for resolving merchant disputes in North America. Our friends across the pond have implemented this technique as of last summer on the heels of a more traditional ADR directive. The new ODR Regulation will enable consumers to bring claims easily, intending the result of a unified EU approach to consumer disputes. The cost of the ODR procedure should be nominal, further reinforcing the aim of the EU to encourage the free movement of goods. However, use of the new procedures will not be mandatory and the procedures will not apply to traders established outside the EU that sell there. Despite the absence of an obligation on the parties to engage in ADR, traders are obliged under the prior EU ADR Directive to provide consumers with certain information relating to ADR entities and ADR schemes which are relevant to their business sector. ODR Regulation further requires that online traders provide a point of contact, as well as a link to the ODR Platform. The ODR Platform offers a single point of entry to EU consumers and traders seeking to resolve disputes out of court which arise from online transactions. Complaints can be filed electronically in all official languages of the EU. The ODR Platform will subsequently transmit the online complaints to the ADR entity competent to deal with the specific dispute. Finally, the ODR Platform provides its own case management tool that enables the ADR entity to conduct the ADR procedure through the ODR Platform. It should be interesting to see the statistics on use and settlement once ODR has taken hold in the EU. See more here from Morrison & Foerster-- http://bit.ly/1O86RSZ

Eminent Domain Mediation

Just having conducted an eminent domain mediation this week between a municipality and property owner, I was reminded of dispute resolution features contained in the statutory process here in Florida codified in Chapter 73, Florida Statutes. Under this section, at any time in the presuit negotiation process, the parties may agree to submit the compensation or business damage claims to "nonbinding" mediation. It is interesting this language is used as a qualifier. Though the process is certainly designed for self-determination of the outcome, any agreement reached containing the formalities referenced below would likely be binding when reviewed by a court. Under this process, the parties shall agree upon a mediator certified under Chapter 44, Florida Statutes. Records used to substantiate business claims include federal income tax returns, tax withholding statements, state sales tax returns, balance sheets, profit and loss statements, state corporate income tax returns for five years preceding notification attributable to the business operation on the property to be acquired, and other records relied upon by the business owner as evidence. In the event that there is a settlement reached as a result of mediation or other mutually acceptable dispute resolution procedure, the agreement reached shall be in writing. The written agreement provided for in this section shall incorporate by reference the right-of-way maps, construction plans, or other documents related to the taking upon which the settlement is based. In the event of a settlement, both parties shall have the same legal rights that would have been available under law if the matter had been resolved through eminent domain proceedings in circuit court with the maps, plans, or other documents having been made a part of the record. As such, the property or business owner who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided by statute. Evidence of negotiations or of any written or oral statements used in mediation or negotiations between the parties under this section is inadmissible in any condemnation proceeding, except in a proceeding to determine reasonable costs and attorney’s fees. See more here-- http://bit.ly/1L8bKuw

EEOC Seeks Carve-outs in Employment Arbitration Clauses

The Equal Employment Opportunity Commission (EEOC) processed nearly ninety thousand charges last year. Reportedly, the EEOC will not hesitate to take action against employers that prevent employees from filing EEOC claims, which includes mandatory arbitration agreements. Such agreements should contain a carve-­outs that expressly allow employees to file EEOC charges, as one franchisee of major restaurant chains in Florida recently learned. The company had a mandatory arbitration provision with no exception for the filing of administrative charges by employees with the EEOC. The EEOC sued, alleging such agreements constitute a pattern and practice of resistance to rights secured by Title VII of the 1964 Civil Rights Act. Thus far, a federal court ruled that the EEOC was authorized to file suit against employers in the absence of an underlying charge of discrimination. The court also ruled that the EEOC had standing to sue, itself, even if not a party to the arbitration agreement in question. In what was perhaps a subsequent remedial measure, the company already amended its agreements. Interestingly, the EEOC is on record in strong support of voluntary alternative dispute resolution programs that resolve employment discrimination disputes in a fair and credible manner, and are entered into after a dispute has arisen. It has even recognized that while even the best arbitral systems do not afford the benefits of the judicial system, well-designed ADR programs, including binding arbitration, can offer in particular cases other valuable benefits to civil rights claimants, such as relative savings in time and expense. However, it seems depriving employees of their right to file EEOC administrative charges will not be tolerated by the current EEOC, even if the employees will ultimately have to arbitrate their claims rather than litigate them in court. See more here--http://onforb.es/1KRSqS9 and http://www.eeoc.gov/policy/docs/mandarb.html

Cosby Confidentiality

Last summer, The New York Times published an article referring to the full transcript of Bill Cosby's 2005 deposition in Constand v. Cosby. Andrea Constand sued Cosby for sexual assault and agreed to a confidential settlement in 2006. Portions of the deposition transcript were previously released by a U.S. District Judge in the Eastern District of Pennsylvania, when referenced in an unsealed court document. Cosby's lawyers portrayed confidentiality as what induced them to make a settlement with his accuser in the first place. Court records can be sealed if there is good cause, which generally means the harm caused by making information available to the public is greater than its benefit. However, with the strong presumption in favor of public access to court documents, it is incumbent on parties and their attorneys to seek protection before filing confidential information in the court record. The federal judge denied motions from both sides over the release of the transcript from that decade-old deposition in the sexual-assault lawsuit against Cosby. Last week, decisions were issued denying Cosby's motion for leave to take discovery on how the transcript was released, as well as denying a motion for sanctions against Cosby's attorney for trying to take discovery. After the release of the full transcript, it reportedly became clear in court documents that a court reporting service provided the document to the press under the impression that it was a publicly available document. Cosby's lawyers alleged the release breached the confidentiality conditions of the settlement agreement. Interestingly, however, the presiding judge said such limitations were set forth in the settlement agreement, not in a court order and therefore, the court cannot conclude whether the disclosure would constitute a violation of of the parties' confidentiality agreement. See more in full story here-- http://bit.ly/1VNnEMe

UNCITRAL & International Settlements

The United Nations Commission on International Trade Law (UNCITRAL) was established by United Nations General Assembly Resolution 2205 in 1966 to promote the progressive harmonization and unification of international trade law. Lack of framework for the enforcement of settlement agreements is why international parties are often reluctant to resort to mediation, notwithstanding its effectiveness as a method of ADR. In order to promote mediation and solidify the enforceability of settlement agreements, efforts by UNCITRAL are underway to find a solution. Last summer, during a session of UNCITRAL that took place in New York, a proposal to undertake work on the preparation of a convention on the enforceability of international commercial settlement agreements reached through mediation/conciliation was put forward to UNCITRAL by the United States. Accordingly, Working Group II (WGII)-- one of six working groups established by UNCITRAL, specifically relating to arbitration and conciliation-- was assigned to perform the substantive preparatory work. This group was requested to consider the proposal and report back to UNCITRAL on the feasibility and possible form of work in that area. During a recent session of UNCITRAL that took place in Vienna, WGII reported to UNCITRAL a summary of its findings, its concerns and recommendations. UNCITRAL approved giving WGII a mandate to work on the topic of enforcement of settlement agreements resulting from international commercial conciliation. Reportedly, the mandate given by UNCITRAL to the WGII is broad enough to include different possible forms of work, namely: (i) a guidance text, (ii) a model legislative provisions, and perhaps most significantly, (iii) a convention. It will be interesting to see what develops as a result of this important work. See more here-- http://bit.ly/1Xbd9no and http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html

A look back: President's Mediation Commission

While recently researching Justice Frankfurter of the U.S. Supreme Court, I discovered that before he became an associate justice, he was appointed almost a century ago to a body known as the President's Mediation Commission. This represented a partial federal response to two vital aspects of wartime labor policy: 1) the spreading wave of strikes which interfered with the production of goods deemed vital to the war effort, and 2) the growth of labor radicalism associated with the Industrial Workers of the World (IWW). Samuel Gompers, the president of the American Federation of Labor (AFL and later AFL-CIO), feared both the growth of the IWW and the ensuing vigilantism, which threatened AFL unions. Apparently, Gompers desired a federal policy that would simultaneously curb the IWW and protect "legitimate" trade unions. Gompers urged Washington to form a special presidential commission to investigate labor-capital relations. In August 1917, the secretary of labor convinced President Woodrow Wilson of this policy and a five-person commission was created. The secretary desired a commission that would effectively mediate the substantive issues causing labor discontent and would also eliminate the IWW. More influential than any of the five suggested commission members, was Felix Frankfurter. Officially appointed by President Wilson, the President's Mediation Commission operated on the basis of guidelines set by Frankfurter. Those guidelines recommended the promotion of AFL-style trade unionism, the elimination of subversvie IWW locals, and the encouragement of industrial democracy. The Commission began its formal investigations and hearings later that year. Its members later traveled to various industries and investigated their disputes, studying labor discontentment. The following year, the Commission presented its findings and recommendations to the President, which largely followed the original Frankfurter guidelines and which were subsequently published as a special bulletin by the Department of Labor. See more at Guide to the Papers of the President's Mediation Commission on microfilm collection number: 5751 mf-- http://rmc.library.cornell.edu and Report of President's Mediation Commission-- http://bit.ly/1Ubu2Kw

The Evolution of the Joint Session

Recently, Kim Taylor, COO of JAMS, questioned the survival of the long-held practice of commencing mediation conferences with a joint session of all parties and their counsel. Usually, that provides an opportunity for each viewpoint of the case to be expressed to the other side and to outline the settlement process with participants, before breaking into individual caucuses. Over eighty percent of mediators surveyed earlier this year used such sessions twenty years ago. Lately, a resistance to joint sessions is reported to have arisen. That survey of neutrals revealed a decline in the use of the joint sessions. Regionally, some seventy percent of neutrals based in the east said they still regularly use joint sessions. I find them to be helpful and estimate that I start that way over ninety percent of the time. However, the report from Southern California is that joint sessions are held merely a quarter of the time. Perhaps the process has become confrontational or maybe both sides already understand the positions and everyone just wants to get down to the business of negotiating, supposedly saving costs. Of course, there are certain cases where a joint session is not productive and could actually prove detrimental to the process. Ms. Taylor suggests that because of self-determination, most mediators will not insist on a joint session if the parties do not want one. However, to skip an initial joint session could impact the process that follows, limiting options for settlement or finding common ground and the path to a deal. I try to use it regularly, as our rules require disclosures and I find it assists in laying some foundation for the process and expectations. Caucuses can remain confidential and the parties retain control over information to be shared. Using the open ended question in joint session to get positive responses from the parties at the outset on areas where there already may be overlap in agreement on facts or damages is essential to reaching a successful outcome. See more here-- http://bit.ly/1KajjyN