Annotations

Thomas F. Gibbons, ADR Use By Government Agencies, ADRI IL-CLE 11-1 (2001). 

The author sets forth an in-depth tracking of the development of alternative dispute resolution (“ADR”) programs within eight individual federal agencies, including the Department of Justice, the Federal Aviation Administration, and the Internal Revenue Service, and three governmental agencies in Illinois, including the Illinois Attorney General’s Office. Additionally, the author discusses the federal government’s role in promoting ADR since 1925 and its continuation in modifying and expanding its application to the present day. The Interagency ADR Working Group was created to facilitate and coordinate the growth of ADR among the federal agencies, and its Report to the President regarding the success of federal ADR programs is promising.

Luis M. Diaz & Nancy A. Oretskin, The Use of Mediation to Resolve Commercial International Business Disputes, 648 PLI/Lit. 873 (2001). 

Due to increased globalization of trade and investment, legal disputes arise involving complex jurisdiction issues. The authors propose mediation as an effective tool for international lawyers and arbitrators in such disputes because mediation affords the parties the flexibility required to resolve complex commercial disputes with “business sense.” The authors also discuss the inclusion of a “conciliation” provision, rather than a “mediation” provision, in a draft article by the United Nations Commission on International Trade Law (“UNCITRAL”) Working Group on Arbitration. Other laws on arbitration have similar clauses. These clauses equate a written settlement agreement with an award rendered by an arbitral tribunal, one that can be enforced as a judgment in a court.

Eileen B. Vernon, Arbitration in the Energy/ Minerals Field: Customizing the Clause, 56 Disp. Resol. J. 50 (2002). 

The author suggests that standard arbitration clauses should no longer be “one size fits all,” although that has been the long-standing preference. The author proposes that arbitration clauses should be crafted to fit each specific area of law, i.e., environmental and energy law, and even industry specific issues. For example, the author mentions that mineral and energy lawsuits are so complex, esoteric, protracted, and technical that it would be more expeditious to charge the task of resolving disputes to arbitrators with specialized and industry specific knowledge over lay jurors. Further, in energy and environmental disputes the author states that the current trend requiring a mediation step should be abolished in favor of binding arbitration. According to the author, a detailed thorough coal industry arbitration clause should include the following: (i) applicable arbitration law, such as the U.S. Arbitration Act; (ii) the availability of at least preliminary and evidentiary hearings; (iii) the type of relief that the arbitrators can award; and (iv) qualifications and selection of the arbitrators.

Michael Z. Green, Proposing A New Paradigm for EEOC Enforcement after 35 Years: Outsourcing Charge Processing by Mandatory Mediation, 105 Dick. L. Rev. 305 (2001). 

This article deals with the problems associated with the passage of the Title VII of the Civil Rights Act of 1964. The author states that the Equal Employment Opportunity Commission’s (“EEOC”) program of private mandatory mediation has been increasingly successful due to the rise in the use of mediation as a solution to Title VII disputes. The EEOC, however, faces the problem of a backlog of charges. The author discusses the EEOC’s lack of enforcement power and notes that only thirty-one percent of employers accept mediation when a charge of discrimination is filed against them. The author suggests an amendment to EEOC procedures and congressional approval of legislation that would provide for private mandatory mediation of EEOC charges, which can assist the EEOC by creating a new paradigm for long-term enforcement initiatives.

Rosetta E. Ellis, Mandatory Arbitration Provisions in Collective Bargaining Agreements: The Case Against Barring Statutory Discrimination Claims From Federal Court Jurisdiction, 86 Va. L. Rev. 307 (2000). 

When Title VII of the Civil Rights Act of 1964 was enacted, Congress provided victims of employment discrimination the opportunity to redress their injury in federal court. However, with the recent implementation of mandatory arbitration, this avenue of relief may soon be unavailable. The author stresses that this may be unfair, since, although the majority of employees may have voted for the union, a lot of the employees covered by the collective bargaining agreement may not have voted for it. As a result, many employees are subject tot he mandatory bargaining agreement and are estopped from brining their claims to federal court. The authors suggest that these mandatory arbitration provisions may not fairly resolve disputes. The author concludes by proposing that employees should be permitted to choose whether to bring their discrimination claims to federal district court or arbitration.

Robert F. Cochran, Jr., Professional Rules and ADR: Control of Alternative Dispute Resolution under the ABA Ethics 2000 Commission Proposal and Other Professional Responsibility Standards, 28 Fordham Urb. L.J. 895 (2001). 

The rules of the legal profession should require lawyers to present to their clients the option of pursuing alternative dispute resolution (“ADR”). This symposium discusses the justification for client control of ADR and an emphasis on the fact that clients are generally more satisfied with ADR than with litigation and attorney negotiation. In 1997, the Ethics 2000 Commission updated the Model Rules of Professional Conduct to deal with the growth of ADR as a means of dispute resolution, however, the author argues that the Commission’s proposed rules may undercut the possibility of client influence over the ADR decision. The author suggests two alternative proposals to the current rules – Informed Consent and Client Choice. Informed Consent would require the lawyer to obtain the client’s “agreement to litigate after the lawyer has communicated to the client adequate information and explanation about the material risks of and reasonably available alternatives to the litigation.” Client Choice would give the client the right to choose to pursue ADR and would preclude the lawyer from adopting a form of ADR against the client’s wishes. The author concludes by proposing that the ABA should amend the Model Rules with one of these two alternatives, thereby requiring lawyers to present the option of pursuing ADR and increasing lawyer/client communication.

Samuel Estreicher & Kenneth J. Turnbull, Supreme Court Addresses EEOC Role in Employment Arbitration, 227 N.Y.L.J. 30 (2002). 

This article addresses concern in the employer community with respect to the binding effect of arbitration being circumvented by the Equal Employment Opportunity Commission (EEOC) filing of a court action on behalf of parties, who otherwise would be bound by their arbitration agreements. In a recent decision, EEOC v. Waffle House, Inc., 122 S.Ct. 754 (2002), the Supreme Court partially addressed this issue and held that as far as prayer for relief is concerned, the EEOC can seek the full range of statutorily available relief despite the charging party’s arbitration agreement. The Supreme Court left open the issue of what effect a release or an arbitrated judgment would have on the scope of the EEOC’s suit.

Shoshana K. Kehoe, Giving the Disabled and Terminally Ill A Voice: Mandating Mediation for All Physician-Assisted Suicide, Withdrawal of Life Support, or Life-Sustaining Treatment Requests, 20 Hamline J. Pub. L. & Pol’y 373 (1999). 

Ironically, society’s oppression of the disabled and terminally ill contributes to the premium we, as a society, put on “freedom to chose” euthanasia, or physician-assisted suicide. The author suggests that the dying and thus, vulnerable patient is not so free after all. The author discusses the use of mediation and the “Peacemaking Circle” model as protective and effective methods to counter these coercive forces and restore dignity to the choice. The author concludes by proposing that states, which legalize physician-assisted suicide, must also create safeguards to protect vulnerable patients from society’s bias.

Steven Marchese, Putting Square Pegs Into Round Holes: Mediation and the Rights of Children with Disabilities Under the IDEA, 53 Rutgers L. Rev. 333 (2001). 

The Individuals with Disabilities Education Act (“IDEA”), though providing for substantive guarantees for children with disabilities, mainly focuses on procedural due process rights of the parents/ guardians. The author suggests that the voluntary mediation provision of IDEA, between the parents and the school district, fails to sufficiently meet the substantive goals of IDEA, which are to provide an appropriate education for a disabled child and the inclusion in the least restrictive environment. The author concludes with three recommendations for IDEA’s mediation process, which will assist in equalizing the parents’ power with that of the school district, thereby providing for better protection of a disabled child’s substantive rights in obtaining an “appropriate” education.