After granting a motion to compel arbitration, should a court operating under the FAA stay or dismiss the pending judicial proceeding?  While the federal circuit courts are split on the question, the better rule seems to be that after granting a defendant’s motion to compel arbitration, FAA §4 (9 U.S.C. §4), the court should stay the judicial proceeding pending the arbitration. The pertinent provision is FAA §3 (9 U.S.C. §3), which provides that: “[u]pon being…
Arbitrator Eric Landauer has found that the City of West Linn, Oregon was justified in terminating a police officer because his Facebook posts contained “what reasonably could be viewed as racist comments.” Arbitrator Landauer’s award can be found here. He rejected the Union’s claims that the City’s policy was ambiguous and failed to adequately inform the employee that his Facebook postings could result in his termination (distinguishing an award of Arbitrator Chuck Miller making such a…
While the parties control the outcome of a mediation, the mediator manages the process from which the outcome flows. The preceding post mentioned the fact that a mediator is obligated to conduct a quality mediation and protect the “quality of the process”. What does that mean? Is a quality process simply good coffee and donuts? While good coffee and donuts may very well be desirable, the concept of a quality process is far more than…
Arbitration Nation is seven years old, and has 330 posts under its belt (and no seven year itch).  Hip hip hooray!  One of those posts is a perennial favorite, coming up over and over in search results: When Should You Choose JAMS, AAA or CPR Rules?  Because that comparison is five years old, we give you an update.  Here is a chart comparing the three sets of commercial rules on important topics.  Fair warning: the rules are very similar.  So, we added an asterisk in the first column to indicate an issue…
Today’s post continues our series of arbitration refreshers, to combat the Summer Slide.  It was researched and written by Anne Marie Buethe from the University of Iowa Law School. Despite clear grounds for authority, arbitrators remain wary of hearing and granting dispositive motions.* While arbitrators posit reasons for their reluctance—the risk of vacatur being of primary concern—courts’ consistent affirmance of arbitrators’ summary awards demonstrates that these reasons are overstated. As long as an arbitrator…
I blew out my knee twice playing college football  As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more…
Published in Law 360 (July 30, 2018) Who may determine whether “class arbitration” has been authorized by the parties to an arbitration agreement — a court, an arbitrator, either? Considering the nature of “class arbitration,” is this a special case of the arbitrability delegation issue, or is this issue sui generis? And what does exploring the issue reveal about the larger question of whether “class arbitration” is an oxymoron?…
It is likely no coincidence that self-determination is listed as the first standard in the Model Standards of Conduct for Mediators (“the Model Standards”). The Model Standards were designed to “…serve as fundamental ethical guidelines for persons mediating in all practice contexts.” Self-determination is not just a discretionary academic principle: a mediator is required to conduct a mediation based on this principle and this principle applies at any stage of the mediation, “including mediator selection,…
Arbitrator Daniel Zeiser has issued an award reducing a ten day suspension to five days for a police officer for conduct related to the shooting of Tamir Rice. Cleveland Police Patrolmen’s Association and City of Cleveland.  The grievant was not the officer who shot Rice, and the discipline did not involve the shooting directly. Arbitrator Zeiser noted specifically: The Arbitrator believes it is important to note that the discipline and this grievance, while they…
Okay, folks, we are still combating the summer slide here.  Today’s refresher rule is this: If an arbitrator fails to disclose a substantial relationship, the resulting award can be vacated under 9 U.S. C. 10 (a)(2).  But, not all relationships are substantial, as the cases today make clear. Beginning in my backyard,  the appellant in Ploetz v. Morgan Stanley Smith Barney LLC, 2018 WL 3213877 (8th Cir. June 12, 2018), sought to vacate a FINRA arbitration award…