Mediation, Miscellaneous: A Century After The Neutral Conference For Continuous Mediation And Henry Ford’s “Peace Ship”
A Century After A Failed Attempt At International Mediation . . .
1916, February? "Photograph shows members of the neutral European nations who met with the Henry Ford Peace Expedition in Stockholm, Sweden probably in February, 1916 and formed the Neutral Conference for Continuous Mediation." Library of Congress.
Without a case to post about today, I decided to post this photo of participants in the Neutral Conference for Continuous Mediation. The Jane Addams Digital Exhibition describes the Conference: "The Neutral Conference for Continuous Mediation began in Stockholm on February 10, 1916. It was organized by members of Henry Ford's 'Peace Ship' with the goal of encouraging the governments of neutral nations to negotiate a peaceful end to World War I."
The mission of the Peace Ship ultimately failed, but not before the press weighed in. A 1915 cartoon from Punch is below:
Arbitration, Unconscionability, Employment: Second District, Div. 7 Reverses Order Denying Motion To Compel Arbitration, Finding No Substantive Unconscionability
Arbitrator's Discretion To Limit Discovery Did Not Amount To Substantive Unconscionability.
Finding "some procedural unconscionability", but not substantive unconscionability, the Court of Appeal reversed Judge Michael L. Stern's order denying defendants' motion to compel arbitration. Spaulding v. PJCA-2, LP et al., B285996 (2/7 2/11/19) (Segal, Zelon, Feuer) (unpublished). The Court held that the arbitration agreement, which gave discretion to the arbitrator to limit discovery according to the needs of the case, did not create substantive unconscionability. And since both procedural and substantive unconscionability must be present to hold the arbitration agreement unenforceable, the agreement was enforceable.
COMMENT: The employee alleged that he was compelled to sign the arbitration agreement if he wanted to continue to work. He scribbled his name illegibly, and wrote "UD", intending to mean "under duress." "Some procedural unconscionability"? What does that mean? A tittle, a smidgeon, a whit, a lot? The Court finessed analytical precision by finding an absence of substantive unconscionability.
Miscellaneous: Folk Singer John Kirkpatrick Sings “The Farmers And The Cow”
In Praise Of Mediation? . . .
You may have seen the famous print of the farmers fighting over a cow. One pulls the head, the other the tail, while the lawyer sitting on a stool milks the cow. The folk singer John Kirkpatrick sang the song "The Farmers and the Cow", and his rendition is available on YouTube by clicking here.
The chorus goes:
One Farmer pulled its head and the other one pulled its tail,
And over it they had a jolly row, hello,
And both to law they went, and all their money spent,
Whilst the lawyer kept a-milking of the cow, cow, cow,
Whilst the lawyer kept a-milking of the cow.
A copy of the print that inspired the song is available from Wildy & Sons Ltd., law booksellers:
Arbitration, Employment, Nonsignatories, Pending Cases: Vasquez v. San Miguel Produce, Inc. Is Now Published
This Case Involves The Ability Of Co-Employers To Compel Arbitration With Workers Where Workers Have An Arbitration Agreement With The Co-Employer They Do Not Sue, And Do Not Have An Arbitration Agreement With The Co-Employer They Do Sue.
We blogged about Vasquez v. San Miguel Produce, Inc. on January 4, 2019, at which time it had not been certified for publication. We can report that on January 30, 2019, the case was certified for publication. The case holds that co-employers could compel arbitration with workers under circumstances where a staffing agency had an arbitration agreement with the workers, the workers sued the produce packing company to which they were assigned but not the staffing company, the produce packing company did not have an arbitration agreement, and the produce packing company cross-claimed against the staffing agency. Got that?
Arbitration, Nonsignatories, Agents, and Fees: Second District, Div. 7 Explains When Signatory To Arbitration Agreement Can Compel Nonsignatory Parent Of Signatory Subsidiary To Arbitrate
Court Of Appeals Also Distinguishes Between Arbitrator's Power To Deny Attorneys' Fees To Prevailing Party And Court's Error In Denying Attorneys' Fees Incurred In Postarbitration Proceedings.
The Court of Appeal has done something very useful in this 57-page slip opinion concerning arbitration proceedings, and we like that. The Court has summarized its holding up front: "(1) an attorney does not have standing to petition to compel arbitration of his clients’ claims; (2) a signatory to an arbitration agreement can compel a nonsignatory parent company of a signatory subsidiary on an agency theory where (a) the parent controlled the subsidiary to such an extent that the subsidiary was a mere agent or instrumentality of the parent and (b) the claims against the parent arose out of the agency relationship; (3) the arbitrator did not exceed his authority by substituting the attorney’s clients as the real parties in interest in the arbitration; and (4) the arbitrator did not exceed his authority by denying attorneys’ fees to a party that prevailed in the arbitration. The last holding requires us to part company with DiMarco v. Chaney (1995) 31 Cal.App.4th 1809 (DiMarco) and agree with Safari Associates v. Superior Court (2014) 231 Cal.App.4th 1400." Cohen v. TNP 2008 Participating Notes Program, LLC, and TNP 2008 Participating Notes Program, LLC v. Mark Cohen, B266702 (7/2 1/29/19) (Segal, Perluss, Feuer).
COMMENT: This case involved an attorney, his law firm, his clients, a parent company used for a real estate investment program, two subsidiaries, and a real estate investment plan that went south. The case is interesting for two reasons. First, some of the persons or entities had signed arbitration agreements, others had not. Therefore, the Court of Appeal delves in depth into when a signatory can bind a nonsignatory, when a principal can bind an agent, when an agent can bind a principal, and when a subsidiary can bind a parent corporation. Second, as Justice Segal explains, the Court parts company with DiMarco v. Chaney on the issue of attorney's fees. The Court holds that the arbitrator, acting in equity, need not award attorney's fees under a prevailing attorney's fees clause, unless the agreement is stated in mandatory terms that limit the arbitrator's discretion. However, post-arbitration fees are a different matter. Cal. Code of Civ. Proc., section 1293.2, provides, "The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code." Under the Code of Civil Procedure, costs must be awarded to the prevailing party, and attorney's fees may be costs. There is a nice blog post on the attorney's fees aspect of the case in the California Attorney's Fees blog today.
Mediation Costs: Our Article On Cost-Shifting In Mediation After Berkeley Cement Ruling Appears in Jan. 29, 2019 Daily Journal
We Expand On Our January 17, 2019 Post About The Berkeley Cement Case.
Our article entitled "Cost-shifting in mediation after Berkeley Cement ruling" appears today, in the January 29, 2019 Daily Journal. If you subscribe to the Daily Journal, then you can access the article on-line. Or you can read a short post about the case that we did on this blog on January 17, 2019.