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In the wake of rule changes a Michigan tradition may fade.

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CPR INSTITUTE FOR DISPUTE RESOLUTION
......
ADR EDUCATION.........
Page 105
Associate Attorney General
Raymond C. Fisher explains why the
U.S. Justice Department wants more
emphasis on problem-solving in the
legal profession.
............
STATE ADR
Page 105
There’s been a lot of ADR activity
in Michigan recently. Laurence D.
Connor of Detroit’s Dykema Gossett
describes rule changes under consideration by the state Supreme Court,
and a recent decision authorizing and
setting standards for pre-dispute
employment arbitration agreements.
.............
ADR TECHNIQUES
Page 106
Can the practice and study of ADR
be improved over dinner? Researcher
Christopher Honeyman of Madison, Wis., updates his Theory-toPractice work with details about the
Moveable Feast.
SPECIAL SUPPLEMENT:
ADR 2000......
Page 107
Excerpts from the third CPR online
seminar, “The Art of Mediation
Advocacy: An Insider’s Guide,” in
which moderator Peter Zeughauser
and 10 panelists discuss preparing
and participating in mediation
sessions.
WWW.CPRADR.ORG
VOL. 17, NO. 6 JUNE 1999
Millennium Problem Solving:
Improving the Legal Profession
BY RAYMOND C. FISHER
For some time, it has been clear that in many
cases the customary, formal ways of conventional litigation have less and less utility in a
society that is increasinglycomplex, competitive,and expensive.
O n many occasions, it is
neither cost-effective nor substantively advantageous to proceed by way of lawyers making
arguments, engaging in a blitzkrieg of discovery and motions,
and then waiting for and appealing- decisions from administrative and judicial bodies. Clients want to
remain in control of their disputes, but YOU
can’t control the outcome of a matter once it
is presented to a court for resolution.
Moreover, when a court or jury decides
who wins and who loses, that ruling may not
resolve the mderlying problems that caused
the suit to be filed in the first place. Thus,
this movement is growing, not
out of the benevolent altruism
of the participants, but rather
out of the recognition that in
many circumstances, there are
better ways to resolve disputes.
We know all this. And
becauseAttorney GeneralJanet
Reno knows that ADR works
well when used in appropriate
circumstances, we are continuing to grow our
program at the U.S. Department of Justice.
NOWI know that some have suggested using
(continued on page 120)
..................
...........
ADR BRIEFS
Page 117
An environmental ADR training
resource debuts on the Web.
............
CPR NEWS
Page 118
An anecdote about finding and hiring
a neutral, as well as new information
on accessing CPR materials via the
Internet.
DEPARTMENTS
ADR Briefs .......................
Page
Cartoon by Chase ............. Page
CPR News ........................
Page
CPR 20 Past, 20 Future __.
Page
Online Info .............. Page 118,
Index Info .........................
Page
117
117
118
119
124
119
In the W&e of Rule Changes,
A Michigan Tradition May Fade
BY LAURENCE D.
C~NNOR
Two recent developments signal a growing
recognition and acceptance ofalternative dispute resolution by the state
courts in Michigan. The developments indicate broader ADR
use, and less reliance on a unique
Michigan ADR process.
First, on May 10, the Michigan Supreme Court has ordered
publication of proposed new
and amended court rules for
public comment. The rules would authorize
trial courts to require parties in general civil
and domestic relations actions to attempt to
resolve their disputes through ADR, including mediation, minitrial, summary jury trial
and early neutral evaluation. The rules and
amendments were recommended to the Supreme Court by a special dispute resolution
task force appointed by the Court early last
year. The task force included
lawyers, judges, court administrators and in-house counsel
from around the state.
In its report delivered to
the Court in January 1999,the
task force recommended the
adoption of rules that would
allow a judge to order a nonbinding ADR process in all contested civil
matters. The rules provide that counsel intending to try the case and persons with full
settlement authority could be required to attend the ADR proceedings. The court would
(continued on page 122)
Rule Changes May Fade ‘Michigan Mediation’
(continued from front page)
nominate neutrals from an approved court
list. The rules, however, also encourage parties to select their own dispute resolution process and provider, and would allow parties to
opt out of using a nonbinding process for
good cause, or for a court to find that ADR is
not appropriate.
Other portions of the rules establish qualifications and standards of conduct for courtappointed mediators,and allow parties to select
any neutral regardless of whether he or she
meets the requirementsfor court appointment.
In addition to proposing rules, the task
force also made several recommendations to
the Court. One key proposal urges changing
the name of “Michigan Mediation” to “Case
Evaluation” in order to reduce confusion.
Michigan Mediation, a local tradition, is different from the process generally understood
to be mediation. It involves a three-attorney
panel that evaluates a case for settlement.
Other recommendations include appointing a standing committee to oversee the implementation, delivery and evaluation of ADR
services; giving court-appointed mediators the
status of quasi-judicial immunity; making
ADR processes available both pre-filing and
throughout the course of litigation; promoting legislation assuringconfidentialityin ADR
processes; and exploring the application of
mediation in criminal proceedings and in the
concepts and practices of restorative justice.
Comments will be received for 60 days
after publication, which is expected this
month. In its May 10 order, the Supreme
Court stated that it was “particularly interested in receiving comments on provisions
of the proposed new rule which authorizes
courts to order parties to utilize a non-binding alternativedispute resolution process.” In
preparing the report, the task force had debated sharply the question ofwhether courts
should be permitted to order alternative dispute resolution.
After receiving comments, the Court may
adopt the rules as proposed, amend the rules,
or reject the proposed rules altogether.
Laurence D. Connor is a senior litigation member of
Dykema Gossett PLLC i n Detroit, where he practices
complex business and tort litigation and ADR. He
edits the ADR Newsletter for the Michigan State Bar
Association‘s ADR section, which will cover the developments i n this article i n its June issue. He also
partkipated as a panelist i n the ADR 2000 online
seminar featured i n a special supplement on page
107 of this issue.
P R E DISPUTE AG RE E M E NTS
PERMITTED
The second development involves Michigan
court approval of arbitration agreements imposed as a condition of employment.
In April,a special conflictspanel of the Michigan Court ofAppeals held in a 4-3 decision that
employers may contractwith their employees to
arbitrateprospective civil rights claims. The case
is Rembwtv.Ryan?Family Spakhouse,Inc., 1999
WL. 203148, Michigan Court ofAppeals No.
196542 (Slip. Op. April 9, 1999).
The Court of Appeals is the intermediate
appellate court in Michigan. The special conflicts panel was appointed to resolve the conflict in the cases of Rushton v. Meijer, 225
Mich. App. 156; 570 N.W.2d 308 (1997);
and Rembert v. Ryan?Family Steak Houses, 226
Mich. App. 821; 575 N.W.2d 287 (1997)
(referred to in this article as Rembert I).
In Rushton, the Court of Appeals held
that Michigan public policy did not permit
employees to waive pursuit of a civil rights
claims in a judicial forum as a condition of
employment. The Court also rejected the
defendant’s contention that Michigan public policy was preempted by the Federal Arbitration Act.
In RembertI, the plaintiff signed an agreement to resolve all future employment-related
disputes through arbitration. The plaintiff
later sued the defendant in circuit court for
race discrimination and disability discrimination under the state’s civil rights statutes.
The trial court dismissed the plaintiffs claims
based on the arbitration agreement. On appeal, the assigned panel of the Michigan
Court ofAppeals was bound by court rule to
follow the decision of the Rushton panel that
had held that such agreements were contrary
to public policy-but the Rembert I panel
clearly stated that it would hold otherwise if
it were free to do so.
Pursuant to a procedure for resolving conflicts between Court of Appeals panels, the
Court appointed a special conflicts panel to
address the issue.
The special conflicts panel upheld the arbitration agreement in its April opinion (referred to here as “RembertIY).It stated “ [ V e
join the majority of courts and hold that so
long as no rights or remedies accorded by the
statute are waived, and so long as the procedure is fair, employers may contract with their
employees to arbitrate statutory civil rights
claims.”
In a carefully constructed opinion, the
majority reviewed both Michigan and federal common and statutory law regarding
policies favoring arbitration. Relying
heavily on Gilmer v. Interstate/Johnson Lane
COT., 500 U.S. 20 (1991), and Cole v.
Burns Int’lSec. Servs.,lO5 E3d 1465 (D.C.
Cir. 1997), the Court established three prerequisites to a valid agreement to arbitrate
civil rights claims under Michigan law: (1)
there must be a valid contract covering the
claims; (2) the statute must not prohibit
such agreements; and (3) the arbitration
agreement cannot waive substantive rights
and remedies and the arbitration procedures must be fair.
After finding that the contract between
the plaintiff and his employer was valid and
that the applicable Michigan civil rights statutes did not specificallyprohibit such agreements, the Court examined whether the
agreement provided procedural fairness to the
plaintiff. It delineated the following minimum requirements of fairness and held that
the agreement met them: (a) clear notice to
the employee of a waiver of the right to adjudicate discrimination claims in a judicial forum; (b) a right to representation by counsel;
(c) a neutral arbitrator; (d) provision for reasonable discovery; and (e) a fairly conducted
arbitral hearing.
Interestingly, although relying heavily on
Cole, the majority did not include among
the fairness requirements a rule that the employer must pay the fees of the arbitrator
and arbitration service. It reasoned that, as
a practical matter, claimants will have the
opportunity to shift these fees to the employer under a Michigan court rule providing that the cost of arbitration proceedings
may be taxed as in civil actions and under
the provisions in both statutes at issue that
complainants may be awarded reasonable
attorneys fees.
NEW REVIEW STANDARD
In another important aspect of the decision,
the majority announced a standard for review of arbitration awards involving such
claims. Specifically, the majority held that
courts must vacate arbitration awards in
statutory arbitration disputes when the
arbitrator’s legal error is “so material or so
substantial as to have governed the award,
and but for which the award would have
(continued on following page)
(continued from previous page)
been substantially otherwise.” In order to
allow implementation of this standard of
review, the Court also held that all arbitral
awards under such circumstances must be
in writing and contain findings of fact and
conclusions of law so that the appropriate
standard of review may be meaningfully
applied.
The plaintiff has filed a motion for rehearing in Rembert IIand undoubtedly will
apply for leave to appeal to the Michigan
Supreme Court if its motion is denied. One
of the grounds for a rehearing asserted by
the plaintiff is that Rembert IIdoes not require employers to bear the cost of arbitration proceedings as required by Cole and,
therefore, the process is inherently unfair.
Left unresolved is the question whether, regardless of Michigan public policy, such arbitration agreements evidence transactions
involving interstate commerce and therefore
are preempted by the Federal Arbitration
Act.
Thus, while the adoption of comprehensive ADR court rules and final judicial approval of predispute agreements to arbitrate
statutory claims are far from faits accomplis,
Michigan courts clearly seem to be moving
toward acceptance of broad-based ADR programs, rather than continuing to rely on
“Michigan Mediation” as their principal disP
pute resolution mechanism.
A ‘Moveable Feast’ of ADR Practitioners and Researchers
(continued from page 121)
quality of discussion on a serious topic likely
to be at a table that includes two dozen
people? My organizer colleagues, University
of Missouri-Columbia School of Law Prof.
Bobbi McAdoo and Dickinson School of Law
(Carlisle, Pa.) Prof. Nancy Welsh, and I concluded that basic acoustics virtually guarantees that a gathering set up that way will
devolve into separate discussions, in which
the topic is gradually lost in an entertaining
but unproductive series of diversions.
Does that seem familiar?
We settled on a structurein which the whole
group would assemble briefly for a short
groundingin the problems at hand, in the form
of a scholar and a practitioner recounting some
relevant personal experiences. Earlier Theory
to Practice events had identified two who combined some emblematic-and troubling--experiences with a willingness to discuss them,
semi-privately, among a select audience.
Followingthisorientation,the group divided
into four tables of six, which we concluded to
be the ideal size for an intense discussion. A
couple of hours later, the group got back together for a quick rundown on which table had
produced what insights, and we retired for the
night. Rough notes were produced on the spot
by four “reporters,”one at each table. And interest has remained high enough that many who
were present for this one-time encounter have
taken the time to write detailed comments on
the first draft of the resulting document.
T H E R E S U L T I N G ’PROTOCOLS’
There isn’t space here to print what we are
now calling “not quite protocols.” The protocols continue to be a work-in-progress. But
the following illustrates some of the results
of a lively and straightforward talk among
proficient people who rarely get to draw from
each other’s expertise.
For example, the development of project
protocols represents an important occasion
for the practitioners to judge the character
and trustworthiness of a particular researcher.
The group concluded that no boilerplateprotocols should substitute for the process of
explanation and negotiation, so that one side
won’t feel blindsided later. Some of things that
should emanate from this kind of initial discussion with practitioners:
A SENSE OF RECIPROCITY. Without this,
the project is unlikely to endure beyond the
first few glitches. The researcher needs to
build something into the research that most,
if not all, of the practitioners involved view
as beneficial (e.g., the opportunity for intellectual discussion or introspection, feedback
on their own practice, opportunity to improve
practice, publicity). The researcher also needs
to understand that practitioners are busy and
that they need to allocate time efficiently.
ADVANCE PROVISION FOR REALITY TESTING W I T H PRACTITIONERS. Research has a
way of producing results that surprise practitioners, or even alarm them if disclosed prematurely or without opportunity for
feedback. Where the subject matter is sensitive, it may increase confidence in the researcher for an explicit offer to be made that
conclusions will be shared initially with the
program or by telephone rather than in writing.
DISCUSSION OF DATA COLLECTION I N STRUMENTS. Early and frank discussion of
how these will work, and what options there
may be for incorporating information that is
of secondaryinterest to the researcher but important enough to the program to offset the
opportunity costs of becoming involved in research, may be important elements of building practitioners’ trust in the research and the
researcher.
In the first effort, the encounter’s design
had a lot to do with the constructive quality
of the interaction. The frankness and informality of the discussion are reflected in the
tone of the resulting text. Both frankness
and informality have been in short supply,
in the often-stilted settings in which ADR
scholars and practitioners tend to meet. Yet
this is a meeting design that‘s relatively easy
for other groups to replicate. After all, there
are many more local and regional issues that
need addressing than broad-scale ones like
the “protocols” issue we picked. When everyone involved in a discussion is from the
same geographic area, it should be easier to
arrange a meeting.
The characteristics of a Moveable Feast
are not, when you stop to analyze them, all
that hard to arrange: A deliberately ephemeral group; a selective invitation list; an informal setting including some sort of food;
a “working party” orientation rather than a
typical symposium or conference; and a “laborer” who undertakes to codify the results
and check back for corrections following the
discussion. This is enough to get a goodnatured but blunt discussion going.
(The project now has another Moveable
Feast slated. Later this month at the U.S.
Justice Department, we will take up a different subject: The search for “practical
theory” in the dusty archives of researchers whose work has all too often been ignored, when it might yet help to improve
practice.)
And if researchers and practitioners can
feel freer to be forthright about the problems, they are more likely to discover why
they hold different perspectives. This can
lead both to understand better the value
of working together in novel and challenging combinations of interest and backP
ground.
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