Mediation: Evidence Of Its Benefits Are Found In Maryland Study
The Evidence Supports Mediation’s Selling Points.
The Maryland Judiciary has commissioned research to be conducted by independent researchers on the efficacy of mediation with small claims-type cases. The research claims to be “the only research in the country that compares the attitudes and changes in attitudes of participants who went through ADR to an equivalent comparison group who went through the standard court process.” The research also examines the long-term and short term effects of employing different mediation strategies, such as reflecting back the emotions and interests of the participants, and eliciting solutions, offering solutions, and caucusing.
The research showed significant benefits for those who went through the ADR process. Participants were more likely to resolve all their issues. They had an increase in their rating of their level of responsibility for the situation. Participants were more likely to be satisfied with the judicial system than others. They were more likely to emerge with a better attitude toward the other side, and with a higher satisfaction with the outcome.
The study also found interesting results regarding the strategies employed by mediators. In the short run, reflective strategies seemed to make participants feel more positive, though such strategies seemed not to have a statistically significant effect in any positive or negative outcomes. Frequent caucusing correlated with lower satisfaction, and with a higher likelihood of return to court. Also, “eliciting strategies” – asking participants to suggest solutions, summarizing the solutions, and asking them how the solutions would work for them – were strategies associated with a lower rate of return to court in the long run. Being directive by offering solutions was a less successful strategy than eliciting solutions.
Query whether reflecting back the emotions of participants, keeping them all in the same room without caucusing, and avoiding evaluation and directive solutions will work with equal success in more complex mediations.
Here is a link to the studies.
Pending Cases, Federal Arbitration Act: Nursing Homes Petition SCOTUS
Can Kentucky Require That Nursing Home Resident’s Power of Attorney Reference Arbitration In Order To Effectively Bind Attorneys-In-Fact To Arbitrate Wrongful Death Cases? – Or Does Federal Arbitration Act Preempt State Requirement?
Above: Nurse training. Nov. 1942. Fritz Henle, photographer. Library of Congress.
At the beginning of the week, we reported that SCOTUSBlog’s “Petition of the Day” involved an arbitration/FAA/preemption/standard of review issue. In fact, the case, R.J. Reynolds Co. v. Maryland, is the subject of our immediately preceding post. Now, just a few days later, another case involving arbitration/FAA/federal preemption is the subject of a writ of certiorari to SCOTUS.
The case is Kindred Nursing Centers Limited Partnership v. Clark et al, No. 16-32.
The question presented by the Petition is:
”Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.”
The redoubtable Andrew J. Pincus of Mayer Brown is listed as Counsel of Record. Mr. Pincus led AT&T to victory in AT & T v. Concepcion, 563 U.S. 333 (2011), the landmark case holding the FAA preempts state laws prohibiting contracts from disallowing class-wide arbitration,
Pending Cases, Federal Arbitration Act, Standard of Review: Tobacco Companies Petition SCOTUS
SCOTUSBlog’s “Petition of the Day” Presents Arbitration Issues.
“The Jolly Smoker.” Currier & Ives. c1880. Library of Congress.
On July 29, 2016, Kate Howard reported on the “Petition of the Day” in R.J. Reynolds Co. v. Maryland, 15-1537, presenting the issues:
“(1) Whether, when the Federal Arbitration Act (‘FAA’) governs an arbitration, the FAA’s judicial review standards apply in state court and preempt application of different state-law judicial-review standards; and (2) whether, when arbitrators have jurisdiction to resolve a contract dispute, the FAA prohibits a court from holding that they ‘exceeded their powers’ based on the court’s conclusion that their contract interpretation is ‘plainly’ and ‘irrationally’ incorrect on the merits.”
Stay tuned . . .
Arbitration/Waiver: First District, Division 2 Concludes Tribal Council Waived IndianTribe’s Sovereign Immunity For Purposes Of Arbitrating Contract Disputes
Trial Court Is Reversed.
Above: Judge James Wickersham in council with Indian chiefs. Fairbanks, Alaska. c1900-1907. Library of Congress.
“As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its [sovereign] immunity.” Kiowa Tribe v. Manufacturing Tech., 523 U.S. 751, 760 (1998). The issue in Findleton v. Coyote Valley Band of Pomo Indians, No. A142560 (1/2 7/29/16) (Stewart, Kline, Richman) was whether, as a matter of law subject to de novo review, the resolutions of the Tribe’s General Council authorized its Tribal Council to waive the Tribe’s sovereign immunity for purposes of arbitrating contractual disputes with construction contractor Robert Findleton.
Reversing the trial court, the Court of Appeal concluded that the resolution of the General Council authorized the Tribal Council to waive the Tribe’s tribal immunity, and the Tribal Council did so with a broadly worded resolution. On a remand, the trial court will probably have to decide whether the court or the arbitrator needs to decide whether tribal administrative remedies were exhausted.
Arbitration, Appealability, And The FAA: Ninth Circuit Denies Petition For Writ Of Mandamus And An Appeal In Companion Cases In Which Defendants Sought To Compel Arbitration In Labor Law Case
In Re Swift Transportation, No. 15-70592 (9th Cir. 7/26/16): No To Mandamus.
In a prior appeal, the 9th Circuit held that the district court, rather than the arbitrator, must decide whether the dispute was exempt from arbitration under 9 U.S.C., section 1. That section of the Federal Arbitration Act provides that the FAA does not apply to contracts of workers engaged in foreign or interstate commerce. The plaintiffs, who had brought labor law claims, alleged among other things, that they had been wrongly classified as independent contractors, that they were really employees, and thus, that they were exempt from the FAA and the requirement to arbitrate. However, instead of deciding whether the dispute was exempt under the FAA, the district court issued a scheduling order for discovery and a trial on the section 1 issue. Swift sought a writ of mandamus in the 9th Circuit, an action that resulted in a per curiam opinion, a concurring opinion, and a dissent.
The panel denied the mandamus petition. The defendants could present their position before the district court in dispositive motions and directly appeal a final order. Normal litigation expense did not constitute enough prejudice to warrant relief. And the district court’s order was not clearly erroneous, because “whether the FAA compels district courts to decide section 1 exemptions on the basis of briefing alone is an issue of first impression . . . “
Judge Hurwitz, concurring, seemed to adopt a “mountain out of a molehill” approach, finding nothing extraordinary to justify mandamus. If the district court decided that the workers’ contract was not one of employment, it would order arbitration, mooting mandamus. And if the court found the contract was one of employment, Swift could appeal. Since discovery was complete, it made no practical difference even if the section 1 issue could be resolved without discovery.
Dissenting, Judge Ikuta argued that the section 1 issue could be resolved without discovery, that the district court failed to make the legal determination requested by the 9th circuit, and that the section 1 issue presented “a novel and important issue of law,” such that mandamus was justified.
Above: Statue of a punter outside Veterans’ Stadium, Philadelphia, Pennsylvania. Carol M. Highsmith, photographer. Library of Congress.
Van Dusen v. Swift Transportation, No. 15-15257 (9th Cir. 7/26/16): No To Appellate Jurisdiction.
In Van Dusen, the 9th Circuit panel held that the FAA did not grant it jurisdiction to hear an interlocutory appeal from the district court’s case management order. The district judge had neither granted nor denied Swift’s motion. The district court’s order was not final, was not subject to review under the collateral order doctrine, and was not reviewable on the basis that it had the practical effect of denying a motion to compel arbitration.
This time, Judge Ikuta concurred that the court lacked jurisdiction to hear an interlocutory appeal from the district court’s case management order. However, for the reasons stated in her dissent in In Re Swift Transportation, she would have held that the remedy of mandamus was warranted.
Arbitration Gateway And Delegation Issues: In A 4-3 Decision, California Supreme Court Rules That Deciding Whether Arbitration Agreement Permits Classwide Arbitration Is The Arbitrator’s Decision To Make
Dissent Argues That Classwide Arbitrability Is A Gateway Question The Court Should Get To Decide.
The courts have treated gateway arbitrability issues concerning the existence of an arbitration agreement and the scope of the agreement as “gateway” issues for the courts to decide, whereas so-called procedural issues are to be resolved by the arbitrator. So under which rubric should the availability of classwide arbitration be placed? Gateway or procedural issue?
The California Supreme Court ruled today in Sandquist v. Lebo Automotive, Inc., et al., No. S220812 (Cal. Sup. Ct. 7/28/16) (Werdegar, J., writing for majority), that the arbitrator gets to decide whether the arbitration agreement permits or prohibits classwide arbitration. The underlying lawsuit involves allegations by Mr. Sandquist and other non-Caucasian employees that they were subjected to racial discrimination, harassment, and retaliation by their employer.
Justice Werdegar acknowledges “[t]he question has divided the many state and federal courts to consider it.” In Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003), a plurality of the SCOTUS took the view that classwide arbitrability was a procedural issue, failing to definitively resolve the issue.
The majority concludes “no universal rule allocates this decision in all cases to either arbitrators or courts.” Instead, one must look to the specific agreement, subject to interpretation under state contract law, and here, the broad arbitration agreement allocated the decision to the arbitrator. Furthermore, “[u]nder federal arbitration law, no contrary presumption requires a different result, so the issue remains one for the arbitrator.” Here, the availability of classwide arbitration was not treated as a gateway issue, but rather as a procedural issue.
Authoring the dissent, Justice Kruger viewed the availability of class arbitration under the parties’ agreement as a “gateway question of arbitrability” presumptively for the court to decide.
The dissent noted that the switch from bilateral to class arbitration “is one that strikes at the heart of the bargain the parties make.” Viewed as an issue of consent, and expectations of the parties, the availability of classwide arbitration may be viewed as a gateway issue for the court to decide. Classwide arbitration also implicates the rights of third parties who did not sign an arbitration agreement – something that a court is perhaps best able to safeguard.
The immediate upshot of the Court’s decision is that the order of the Court of Appeal is affirmed, meaning that the matter is remanded by the Court of Appeal to the trial court “with directions to vacate its order dismissing class claims and to enter a new order submitting the issue of whether the parties agreed to arbitrate class claims to the arbitrator.” I previously posted on the Court of Appeal decision on July 22, 2014.
COMMENT: The positions of the parties may appear a bit unusual in this case. Usually the employee prefers to be in court, and the employer prefers to be in arbitration — especially because individual arbitration has become useful as a tool for employers to eliminate classwide arbitration. Here, the trial court dismissed the employee’s classwide claims with prejudice. But now the employee – and the class – will get a “second bite of the apple” in front of an arbitrator. That is no guarantee, of course, that the outcome will be any different.