вход по аккаунту


Briefs Arbitration case pulled; new ADR rules and law.

код для вставкиСкачать
148 Alternatives
CPR Institute for Dispute Resolution
Third Circuit
Short Circuits An
Arbitration Case
An unusual procedural maneuver by
the US. Third Circuit Court ofAppeals
has derailed a major arbitration case.
Last summer, after the court’s 12
judges vacated a panel decision and
agreed to hear an en banc appeal
soon after the decision was issued,
the court reversed itself and sent the
case back to the three-judge panel
that decided the case.
The case, Martin u. Dana Corp., may
have been headed to the U.S. Supreme Court. It raises issues under
several major arbitration cases, including Gilmer v. Interstate/Johnson Lane
Corp., 111 S.Ct. 1647 (1991), which
sent an employee who had an employment contract to arbitration over a
statutory age discrimination claim.
Martin arises in a union context.
The plaintiff, a welder at Dana’s Reading, Pa., plant, filed a discrimination
suit after getting an Equal Employment Opportunity Commission rightto-sue letter about three years ago.
Dana successfullymoved for dismissal,
based on the fact that a collective bargaining agreement required arbitration of employment claims.
On June 12, a three-judge Third
Circuit panel affirmed a lower court
ruling dismissing the suit. 114F.3d 421
(3rd Cir. 1997).In an opinion byJudge
Robert E. Cowen, the court upheld the
decision because both the employee
and the union, the United Steelworkers of America, could compel the arbitration under the collective
bargaining agreement. Cowan wrote
that the situation was different from
the many precedents involving union
employees and arbitration. The worker
had relied in part on a Supreme Court
“It hurts when I throw the
book at someone. ”
Vol. 15, No. 10 November 1997
case-Alexander u. Gardner-DenverCo.,
94 S.Ct. 1011 (1974)-that said that a
union employee did not forfeit his
1964Civil Rights Act Title VII discrimination claim even though he had lost
a collective bargaining agreement arbitration.
In Martin, however, Cowan wrote
that Gilmer, not Alexander, controlled,
because there was no disparate power
between the employee and the union
since the employee didn’t have to
persuade the union to arbitrate and
could initiate arbitration on his own.
Less than three weeks after the
panel decision, the Third Circuit vacated the opinion. It granted a hearing en banc onJuly 1,and it tentatively
scheduled the case for argument before the full circuit on Oct. 29.
But the argument never took
place. On Sept. 12, the Third Circuit,
on its own motion, canceled the rehearing and sent the case back to the
three original judges, Cowen, Richard L. Nygaard, and Anthony J.
Scirica. A few days later, Cowan asked
plaintiff‘s attorney Kingsley A. Jarvis,
who operates his own practice in
Norristown, Pa., to brief the issue of
whether his client had the right to
submit a grievance to arbitration
without the union’s approval.
William Bradley, calendaring supervisor for the Third Circuit in
Philadelphia, said that the court
hasn’t pulled a case off its en banc
schedule in his 10 years in the job.
“It probably has happened in the
past,” he says. Cowan has not set a
re-argument date, and in fact there
is no Third Circuit rules requirement
that the case be argued again.
It is questionable, in light of the
procedural move, whether Martin
will make the impact that appeared
possible when the Third Circuit took
the case en banc last summer. In September, Dana announced a major
layoff at the Reading plant. At press
(continued on following page)
Vol. 15. No. 10 November 1997
(continued from preuious page)
time, the union and the company
were holding collective bargaining
talks; the union, which has supported
the plaintiff, has asked the company
in the negotiations to change the language that suggests that individuals
have a right to submit cases to arbitration without the union’s backing.
Dana in-house legal counsel Gary
Golden, however, says that the case is
not going to go away. ‘‘I believe it will
not get washed out in the negotiations,” he says, noting that the current
labor agreement expires Nov. 2.
Golden adds, “The parties will let the
courts deal with the issue.”
Jarvis says he hadn’t addressed the
question of the employee’s right to go
to arbitration without the union fully
in his papers. He says he filed the brief
that the court requested in late September; at press time, no decision had
been issued. Both the EEOC and the
Steelworkers union had filed friendof-the-court briefs in the case disputing the company’s position and
interpretation of the collective bargaining agreement’s arbitration provision.
Dana, which makes automobile
parts, is based in Toledo, Ohio, and
is a member of the CPR Institute for
Dispute Resolution, which publishes
Minnesota Finalizes
Neutrals’ Code
The Minnesota State Supreme Court
has adopted a far-reaching code of
ethics for neutrals.
The code was added to Rule 114 of
the state’s General Rules of Practice
in an August 27 order. The code consists of seven general rules, and one
rule directed specifically at mediation
neutrals. It is based on recommendations of the Court-appointed ADR
Review Board, which based its report
in part on the American Bar
Association’s model mediator conduct standards.
The debate over the issues involved
in writing the code was the subject of
Altcrnatives 149
(:PR Institutr for Disoult, Rrsolutioii
four articles over three issues of Alternatives in a series that began a year ago.
See “Minnesota Takes up ADR Ethics
Challenge,”14Alternatives 121 (November 1996); two articles at “Lessons
Learned: Minnesota Courts and Practitioners Tackle ADR,” 14 Alternatives
135 (December 1996);and “Decisions
Standards Raise Policy Issues as Minnesota Drafts and ADR Code of Ethics,”
15 A1tmative.y 3 (January 1997).
Some of the key issues covered in
the code that were raised in the debate over the texts, and discussed in
the Alternatives articles, include:
There is no direct link in the new
code between neutral’s actions and
professional responsibility rules. In its
introduction, the code states that a violation “shall not create a cause of action nor shall it create any
presumption that a legal duty has been
breached. Nothing i n this [clode
should be deemed to establish or augment any substantive legal duty on the
part of neutrals.” But the introduction
also provides that if the code is violated, the state court administrator can
remove individuals and organizations
from the state neutrals’ listing, and that
violators also are subject to “suchother
action as may be taken” by the Court.
The ADR Review Board approves
neutrals for court-referred cases.
The Court adopted in its entirety
the proposal drafted by the board on
conflicts. Rule I1 states that ‘‘ ... Without the consent of all parties, and for
a reasonable time under the particular circumstances, a neutral who also
practices in another profession shall
not establish a professional relationship in that other profession with one
of the parties, or any person or entity,
in a substantially factually related
matter.” Some Minnesota attorneys
felt that the board’s recommendation
was too rigid on its ban on subsequent
relationships, which they believe can
be extended too easily to a neutral’s
firm or organization from the individual neutral.
A proposed special rule requiring
arbitrators and consensual special
magistrates to issue opinions “based
upon the law,” suggested by the
(continued on page 151)
i s on
w ww. cprad r. org
Visit CPR‘s web site
when you want
To analyze a business dispute
for i t s ADR potential
To select a highly qualified CPR
To get a quick response t o an
To download a sample clause or
mediation procedure t h a t you
can adapt t o your needs
To f i n d out if parties t o a dispu e
are among t h e 4,000 firms
who‘ve committed t o explore
To stay up t o date i n ADR
CPK Institute for Dispute Kesolution
Vol. 15, No. 10 November 1997
(continuedfrom i page 149)
Minnesota State Bar Association’s
Conflict Management and Dispute
Resolution section, was not adopted.
Besides the rules noted above, the
Court adopted rules on impartiality,
competence, and the quality of the
process. A rule on confidentiality also
is linked to two other general practice rules that deal with evidence, adjudication, and neutral’s records. In
writing “that is made or prepared for
the purpose of, or in the course of, or
pursuant to, a mediation or a mediation consultation,” without the parties’ consent.
The bill, AB-939, which changes
nine sections of the California code
that relate to mediation, removes ambiguities about mediators’ testimony
if the settlement is challenged. The
principal changes are in the Evidence
Code section. Neither mediators nor
anyone assisting them in the media-
California’s new law requires
parties’ consent before mediation
proceedings can be part of
discovery in a subsequent suit.
addition, a comment to a rule on advertising and solicitation notes that
neutrals on the state roster “may use
the phrase ‘qualified neutral under
Rule 114 ...,”’ but they may not identify themselves as “certified”neutrals.
Finally, the mediation rule on selfdetermination states that “ ... The primary responsibility for the resolution
of a dispute and the shaping of a
settlement agreement rests with the
parties. A mediator shall not require
a party to stay in the mediation against
the party’s will.” Nevertheless, a comment leaves the door open for evaluative mediators, noting that “[ilt is
acceptable for the mediator to suggest
options in response to parties’ requests, but not to coerce the parties
to accept any particular option.”
California Passes
New Law on Mediator
A new California law beefs up state
code sections that keep mediation
proceedings confidential.
On Oct. 7, California Gov. Pete Wilson signed a bill banning discovery
disclosure of a communication or a
tion session may be called to testify
regarding the events unless the testimony requested is mandated by law
or all mediation parties agree.
The amendment provides that
“[n]o evidence of anything said or any
admission made” in a mediation or a
mediation consultation is admissible
or subject to discovery in an arbitration, civil action or other civil proceedings. The law, however, does not
permit “[elvidence otherwise admissible or subject to discovery outside
of a mediation or mediation consultation” to become inadmissible by virtue of the fact that the evidence had
been introduced in the mediation.
The bill was written by the California Law Revision Commission, which
updates statutes, after a case last year
conflicted with a 1994 California appellate decision. The two cases “created confusion in the enforcement of
oral settlement agreements in mediation proceedings and left uncertain
the confidentiality of those proceedings,” according to a California state
Senate Judiciary Committee report
on the bill.
The California Legislature has more
on the way. Senate Bill 19, which proposes to increase the powers of courts
to refer cases to mediation and clari-
Alternatives 151
fies arbitrator immunity is expected
to get to Wilson’s desk before the next
session, which reconvenes in January,
concludes at the end of 1998. Andrea
Rosa-Tedla, legislative counsel to the
Senate’s president pro tempore, bill
sponsor Bill Lockyer, says that discussions on 33-19 already have taken place
with the governor’s office. The bill has
passed the Senate and is in the state
Assembly Appropriations Committee.
The sticking point has been the
standard of court review for arbitration cases. Business interests have lobbied heavily against the current
proposal, which allows consumers to
vacate arbitration awards where there
is a mandatory arbitration provision
and the consumer can show that an
arbitrator’s legal error has resulted in
a miscarriage of justice.
Consumers are broadly defined in
the current proposal, and include individuals with medical malpractice
claims that are subject to arbitration;
employees in an employment dispute;
and health maintenance organization
plan participants. The draft also provides that the law’s provisions to get an
award overturned cannot be waived.
From the sponsor’s view, however,
there is wiggle room. Says Rosa-Tedla,
“The senator is willing to entertain
proposals to help the bill pass.” @
to the High Costs of Litigation
publishes an
index for the
preceding year
every February.
The index includes listings
by subject and author.
Newer and back issues are
searchable on WESTLAW’
and L E X I S-NEXI S@.
See back page for
online details.
Без категории
Размер файла
431 Кб
law, adr, pulled, brief, case, rules, new, arbitration
Пожаловаться на содержимое документа