Business Conflict Blog

One of the most interesting sessions at the ABA Dispute Resolution meeting in Washington was a report on an initiative of the Straus Institute at Pepperdine and the Dickerson School of Law at Penn State:  A National Roundtable on Consumer and Employment Dispute Resolution. 

Consumer and employment arbitration is a difficult topic upon which to find rational discourse.  It seems that folks tend to follow Pogo’s advice: “Don’t let the facts get in the way of your research.”  Yet here are Co-Chairs Tom Stipanowich and Nancy Welsh forming a Planning Committee comprising Lisa Bingham, Larry Mills and Homer LaRue to invite 30 scholars, advocates, representatives, policymakers and ADR professionals to have a rational conversation on the topic last February.  The session was conducted under “Chatham House Rules“  and a summary report reveals not only the topics discussed, but a work plan coming out of the initiative.

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Tags: ADR, Arbitration, Employment, Mediation, Public Policy

No sooner had Colin Rule addressed my students at New York Law School but we met each other again in Washington, DC, where he was on a panel on online dispute resolution at the Annual Meeting of the ABA’s Section on Dispute Resolution.  Colin’s seven years with EBay/Paypal, combined with his new start-up Modria, have turned that sparkle in his eye to a glint.  He sees the future, does Colin, and it doesn’t include lawyers — or the law.

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Tags: conflict management, ODR, systems design

For the past ten years (and counting), Dr. Ivan Sutter and Oxford Health Plans have been engaged in a dispute arising from a 1998 agreement pursuant to which Dr. Sutter would provide health services to Oxford’s members and Oxford would compensate the doctor at a predetermined rate.

Seeking quick, efficient resolution of any disputes between them, Oxford and Dr. Sutter agreed that:

No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator.

The doctor initiated this process, however, by filing a complaint on behalf of himself and other Oxford providers in New Jersey Superior Court, arguing that referral of class claims to arbitration would violate New Jersey public policy.  Oxford successfully moved to compel arbitration, the court leaving to the arbitrator the question whether a class should be certified in the arbitration proceeding.

The arbitrator (the estimable William L.D. Barrett) determined in 2005 that the agreement allowed for class arbitration, basing his finding on his interpretation of the arbitration clause.   Oxford unsuccessfully moved to vacate that Class Determination Award before the US District Court, and the denial was affirmed by the Third Circuit in 2007. 

Then the arbitration proceeded to the merits.  (See how quick arbitration can be, students?)  Read more »

Tags: Arbitration, Courts

J. Michael Hand didn’t like the Walnut Valley Sailing Club’s storage shed.  A member of the club, though not disabled himself, Mr. Hand thought the structure didn’t comply with the accessibility requirements of the Americans with Disabilities Act.  So he sued.

The Walnut Valley Sailing Club didn’t like being sued, and it terminated Mr. Hand’s membership in the club.

Mr. Hand didn’t like getting terminated, so he sued again, this time for unlawful retaliation under the ADA.

The U.S. District Court for the District of Kansas ordered the parties to mediation, which proved unsuccessful.  And after the mediation Mr. Hand sent an e-mail to at least 44 club members (and others) disparaging the club’s positions and relating all the details of the mediation, including what the mediator said and the amount of the club’s settlement offer.

The District Court didn’t like that.  Indeed, it didn’t like it so much that it dismissed Mr. Hand’s suit with prejudice, by way of sanction.  Mr. Hand did what any good American would do — he appealed to the Tenth Circuit Court of Appeals. Read more »

Tags: Courts, Mediation, Public Policy