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Looking for Mediator Horror Stories

Professor Art Hinshaw at the Sandra Day O'Connor College of Law at Arizona State University is seeking mediator horror stories to share with a broader audience. If you know of a mediator horror story, and can document it in some way, please email the story to art.hinshaw@asu.edu.

Blog: US Supreme Court Asked to Review Case Where Mediator Conflict Alleged to Exist

Hat tip to Disputing Blog.  According to Karl Bayer, author of the article, the US Supreme Court has been asked to review a federal court's order that did not set aside a jury verdict because a court-appointed mediator failed to disclose a "close personal relationship" with an attorney who represented several of the defendants. The Court of Appeals decision is here.

 

Blog: How to Find a Good Divorce Mediator

Michelle Rozen provides five "rules of thumb" for a good divorce mediator. Her article is located at the Huffington Post.

Southern District of Texas: Arbitration Clause Does Not Allow Party to Seek Equitable Remedies in Court

In DXP Enterprises, Inc. v. Goulds Pumps, Inc., filed in the United States District Court, Southern District of Texas, Houston Division, Judge Rosenthal was faced with the question of whether the court could dismiss a claim for permanent injunction in favor of arbitration. The parties, an industrial equipment dealer and a manufacturer of pumps, parts, and accessories agreed to an arbitration clause as part of a distributor agreement. The arbitration agreement allowed either party to seek equitable relief in a court of competent jurisdiction. The court holds that the claim for injunctive relief must be submitted to arbitration because, otherwise, the parties would litigate claims in court that they agreed would be determined in arbitration. Link here.

Rule Revisions From 5 Top Global Arbitral Institutions

"Arbitration is an increasingly popular choice for commercial dispute resolution within the international business community" write Kiera Gans and Amy Billing with Corporate Counsel. Gans and Billing note that, while arbitration is popular, it is receiving some criticism that it's not meeting is goal of an expeditious and cost-effective technique. Arbitral institutions, in response to the criticism, have changed some of their rules as outlined in Corporate Counsel's article . Gans and Billing also provide an extraordinarily useful chart highlighting some of the most recent rules changes from five international arbitration institutions.

Blog: "Judge Says 'Over my Dead Body' to Trustee's Mediation Plan"

Stephen Sather, an attorney in Austin, Texas blogs at A Texas Bankruptcy Lawyer's Blog. In a recent post, he discusses the use of mediation in bankruptcy cases, using a recent example in a bankruptcy adversary proceeding in the Southern District of Texas. Apparently, the trustee and the other parties wanted to mediate. When they advised the judge of their request, the judge denied the motion, and during the course of the proceeding asked if estate funds would be used to pay the mediator and espoused his not-so-favorable views about mediation. Link here.

Southern District of Texas: Arbitration provision in job applicant's suit wasn't procedurally unconscionable

In Fernandes v. Dillard's, Inc., the United States District Court for the Southern District of Texas (Houston Division) held that an arbitration provision above the job applicant's signature, wasn't procedurally unconscionable. An arbitration agreement in a job application, even when the person isn't hired, is enforceable, according to the court. While the applicant also argued that the arbitration agreement wasn't supported by consideration, the court held that the mutual promises to resolve disputes by arbitration constituted sufficient consideration. The court concluded that the job applicant failed to provide evidence that the arbitration agreement was procured through "fraud, misrepresentations, or deceit" and the agreement, therefore, wasn't procedurally unconscionable. Link here.

14th Court of Appeals: Law firm did not owe duty to disclose implications of arbitration provision in a retainer agreement

In Greenberg Traurig, LLP v. National American Insurance Co. et al., the court of appeals was presented with the question of whether a law firm had a duty to disclose the nature and existence of an arbitration clause in a retainer agreement with its client. The court held that the law firm did not have a duty to disclose the arbitration provision in a retainer agreement. The court also held that an insured client was bound by the arbitration provision between the law firm and the insurance company under the doctrine of direct benefits estoppel. Link here.

14th Court of Appeals: trial court did not render judgment contrary to mediated settlement agreement

In Scruggs v. Linn, the Fourteenth Court of Appeals was asked to determine whether the trial court erred when it entered a judgment, including an award of amicus attorney's fees, when the partial mediated settlement agreement did not address that issue. The court of appeals remanded the matter back to the trial court for a determination of whether the amicus attorney fee's award is in compliance with the parties' mediated settlement agreement. Link here.

Texas Supreme Court: Analysis of Unconscionability of an Arbitration Agreement

In Venture Cotton Co-op v. Freemen, the Texas Supreme Court overturned the court of appeals' decision that an arbitration provision was unconscionable, remanding the matter back to the court of appeals. The Supreme Court's decision provides an outline of the defense of unconscionability when analyzing an arbitration provision. Link here.

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