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From the monthly archives: August, 2014

We are pleased to present below all posts archived in 'August, 2014'. If you still can't find what you are looking for, try using the search box.

Comment: What effect will technology have on solo and small firm attorneys (and ADR)?

In a recent post at Above the Law, Carolyn Elefant reports on a panel discussion at Minnesota's Strategic Solutions for Solo and Small Firms Conference. The money quote, from an ADR perspective:

"Sam Glover observed that today, even the most sophisticated estate planning can be done by computers, and it’s just a matter of time before that happens. He added that technology doesn’t just pose a threat to transactional, forms-based lawyers; litigators are at risk too.  For example, Ebay resolves more disputes through online dispute resolution than many large law firms handle in a year. Although currently customers employ dispute resolution for relatively small matters, there’s no reason that it may not be used, at least as a first cut, for many of the litigation matters that solos and smalls previously handled." (emphasis supplied).

Link here.

Texas: 8th Court of Appeals reverses trial court's order denying motion to arbitrate, holding that trial court's determination of unconscionability wasn't raised by the nonmovant.

In Whataburger Restaurants, LLC v. Caldwell, the Eighth District Court of Appeals held that Whataburger's motion to compel arbitration was improperly denied, remanding the matter to the trial court with instructions to compel arbitration and dismiss Caldwell's case. Caldwell, a Whataburger employee, sued in state court for personal injuries and alleged that the agreement to arbitrate employee wasn't enforceable. This decision notes that the trial court pressed Whataburger's attorney on the notion that arbitration is less expensive and faster than a courthouse trial. The trial court denied Whataburger's motion, but the Court of Appeals held that the denial was based upon grounds not raised, and not presented by Caldwell. Link here

Texas: 1st Court of Appeals holds that trial court erred in dismissing claims when mediated settlement agreement didn't contemplate dismissal.

In Bruess v. Residential Credit Solutions, Inc., the parties entered into a mediated settlement agreement that effectively put a hold on foreclosure proceedings pending loan modification. One year after the MSA was signed, RCS moved to enforce the MSA, resulting in the trial court dismissing the plaintiffs'  claims and allowing the foreclosure to proceed. The First Court of Appeals reversed, holding that the MSA did not resolve underlying claims or authorize dismissal of claims; it simply acted to maintain the status quo while the parties worked through the possibility of loan modification. Because the trial court granted a judgment based upon an agreement that didn't resolve the claims or settle all disputes, the judgment was in error. Link here

Article: Military Mediation as Military Justice?

Daniel Maurer, in this article published by the Ohio State Journal of Dispute Resolution, explores the possibility of using mediation as a component of military justice. Maurer concludes that: "Relation-based misconduct provides the most appropriate candidate of crime particularly ripe for mediation within military units, especially when framed against a genuine and historically-justifiable command interest in preserving or repairing 'unit cohesion....' Ultimately, whether in the form of a system that directly employs mediation parallel to orthodox justice, or in the form of a new skill set for military leaders employed indirectly as part of their routine leadership functions, mediation need not be considered alien nor an anathema to current military justice as exercised by military commanders." Link here

10 Tips for a Successful Mediation

In this article in Corporate Counsel, Steven Atlee and Diana Cho provide 10 practice pointers for a successful mediation. Link here.

Wisconsin: Court orders mediation in bankruptcy proceeding to "control legal bills"

According to the Star-Tribune, the federal court overseeing the bankruptcy of the Archdiocese of Milwaukee is ordering the matter to mediation because it "was the best bet for resolving the hard-fought case and keeping more money from going to lawyers rather than sexual abuse victims."  Link here

5th Circuit: No appellate jurisdiction of a trial court order remanding proceeding to the arbitration panel for clarification of the award.

In Murchison Capital Partners, L.P. v. Nuance Communications, Inc., a divided court dismisses the appeal, holding that it does not have jurisdiction to review a district court's order remanding the matter to the arbitration panel for clarification of the arbitration award (relating to out of pocket damages) because the district court's order is not a final order. The district court's order neither confirms nor vacates the arbitration panel's award. Dissent argues that the district court issued a final judgment, did not retain the action or stay proceedings, therefore the trial court's ruling should be appealable. Link here

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