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From the monthly archives: March, 2015

We are pleased to present below all posts archived in 'March, 2015'. If you still can't find what you are looking for, try using the search box.

Blog: Is the facilitative approach useful in mediating commercial disputes?

In this article by Thomas I. Elkind, a partner at Foley & Lardner LLP, the question of a facilitative versus evaluative mediation is discussed, with the author concluding that a facilitative approach can help break impasses. The article also provides value by providing a glimpse into what the commercial clients of mediation are looking for in a mediator.

California: Unconscionable to provide arbitration agreement to dancers while "mostly naked"

Sean Pon, an attorney with Hinshaw & Culbertson LLP, writes in JDSupra that a California federal court recently held that an arbitration agreement was unenforceable because of procedural and substantive unconscionablilty concerns. The opinion, Roe v. SFBSC Management, LLC, No. 14-03616 (N.D. Cal. March 2, 2015), holds that the parties had unequal bargaining power and that exotic dancers had no real chance to negotiate the agreement and had no meaningful choice but to sign the agreement. The dancers, according to the court, were presented the contracts "while mostly naked" and they were rushed, or felt rushed, to sign the agreement. The court also found that the arbitration agreement was unconscionable because of a one-way ban on collective actions and cost-shifting clauses of the agreement. Ultimately, the court struck the entire contract. Mr. Pon suggests that arbitration agreements must contain mutual provisions, must be fairly presented to employees, and the employees must have the opportunity to ...

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Texas: Published advertisement isn't a sanctionable violation of the ADR statute

In The Orchards on the Brazos, LLC v. Stinson, the Fort Worth Court of Appeals was asked to decide whether an advertisement placed in a local newspaper that outlined a settlement offer violated the Texas ADR statute. According to the court's opinion, after mediation and a trial, one of the parties took out an ad in a local newspaper that included statements about the settlement negotiations, including language that "At one point we turned down an offer of 100k from the developer." The other party filed a motion for sanctions, arguing that the settlement offer was a confidential communication defined by the Texas ADR statute. The trial court agreed to sanctions and awarded $5,000.00. The advertisement was not made during mediation nor in the presence of a third-party facilitator. According to the Court of Appeals, the advertisement was not subject to the confidentiality requirements of the Texas ADR statute, and, accordingly, wasn't sanctionable. H/T to Ronnie Hornberger for informing us of this opinion. ...

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Texas: Arbitration Clause Survives Termination or Repudiation of Contract

The Fort Worth Court of Appeals, in BBVA Compass Investment Solutions, Inc. v. Brooks, held that an agreement to arbitrate contained within a contract survives the termination or repudiation of the contract as a whole. The arbitration agreement within a written contract is separable from the entire contract. After finding that the arbitration provision survived, the Court then examined the scope of the arbitration provision, focusing on the factual allegations in the complaint, rather than the legal causes of action asserted. Determining the scope of the arbitration agreement is a question of law for the court. Here, the arbitration provision applied to "all controversies" with the Court analyzing the use of the conjunctive "or" in the arbitration agreement.

H/T to Ronnie Hornberger for informing us of this opinion.

Fifth Circuit: Arbitration panel's interpretation holds "however good, bad, or ugly"

In BNSF Railway Co. v. Alstom Transportation, Inc., the Fifth Circuit Court of Appeals vacated the district court's order which had vacated an arbitration panel's award. The Fifth Circuit held that BNSF failed to carry its burden to show that the arbitration panel was not "even arguably interpreting" a maintenance agreement with Alstom, holding that the arbitration's panel's construction of the agreement holds "however good, bad, or ugly."

H/T to Ronnie Hornberger for alerting us to this decision.


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