News

TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit help4tn.org.

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A Step Ahead Foundation Honors Late Volunteer

Attorneys and community leaders gathered yesterday at the Nashville home of Colleen Conway Welch to celebrate A Step Ahead of Middle Tennessee, an affiliate of the original A Step Ahead Foundation in Memphis. Program founder Claudia Haltom, an attorney and former juvenile magistrate in Memphis, launched A Step Ahead in 2011. There are now four affiliates in other Tennessee cities. The event also honored the late Mary Ruth Shell, one of the founding board members of the foundation and an active pro bono volunteer with the Nashville Conflict Resolution Center and on behalf of children in the juvenile court system. The Administrative Office of the Courts reported the news.

From left: Nashville attorneys Brenda Dowdle, Anne Russell, Claudia Haltom, Deborah Taylor Tate, Jackie Dixon and Mary Walker

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CLE to Focus on Online Dispute Resolution

On Nov. 17, the TBA will present a three-hour CLE on online dispute resolution. The sessions will cover the new world of online dispute resolution, which allows users with civil disputes to forgo court proceedings and instead use web-based technologies to resolve conflicts. Get details and register for the in-person CLE. Those who cannot make to the Bar Center for the course can tune in for a live webcast. Register for the simulcast here.

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Mediation Webcast Series Coming in November

Starting next week, a series of webcasts produced by the TBA’s Dispute Resolution Section and Special Committee on Evolving Legal Markets will offer CLE and CME credit. On Nov. 2, the series will kick off with a focus on creating and managing productive relationships in mediation. On Nov. 17, the series will look at the impact of online dispute resolution tools on the practice of law. Then on Nov. 29, the series will wrap up with a session on mediation in juvenile court. Learn more or register for the courses at the links above.

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Federal Law Forum Sessions Now Live

Sessions from the TBA’s recent federal law forum are now available online. A session on expert disclosures features Memphis lawyer Frank Day of Ford Harrison and focuses on using the rule to gain an advantage in litigation, while a second session with arbitrator and mediator Mark Travis focuses on practice tips for those interested in alternative dispute resolution.

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Event Friday Celebrates Role of Mediation

The Nashville Conflict Resolution Center and Southern Word will hold an event Friday from 6 to 8 p.m. at Rocketown, 601 4th Ave. S. The spoken word event “Only You(th) Can Stop the Violence” will feature original poetry written and performed by Nashville youth. The center is dedicated to helping individuals and families resolve conflict through mediation and find long-term solutions to relieve overcrowded courts and reduce the burden on taxpayers. For more information, contact Sara Figal, 615-333-8400.

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2 Positions Open at AOC

The Tennessee Administrative Office of the Courts (AOC) recently announced two job openings. The first position is a programs manager, which will be responsible for staffing the Alternative Dispute Resolution Commission, managing several grants, assisting with policy development, and planning and implementing education programs. A law degree is required for this job. The second opening is for a communications director to handle media relations, public information activities and internal communication functions of the Judicial branch. A law degree is preferred but not required for this post. Learn more at the links above.

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Court Square 2016 Debuts in Columbia

This year’s Court Square CLE series will launch Sept. 7 at First Farmers Bank in Columbia. Nathan Ridley, Jeff Carson and Roger Maness will address legislative updates, estate planning for digital assets and family law in mediation. Learn more or register online.

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Warren Seely Named ABA Section Director

Tennessee lawyer Linda Warren Seely has been named the new director of the ABA Section of Dispute Resolution. She will take office Sept. 1. Seely served as director of pro bono projects for Memphis Area Legal Services (MALS) for nine years and later became director of MALS’ Campaign for Equal Justice. She recently left MALS to join a Step Ahead Foundation, working to help women learn about and access birth control. Seely is a past president of the Memphis Bar Association and the Tennessee Lawyers Association for Women. She currently serves in the TBA House of Delegates, and on the governing boards of the Association of Women Attorneys Foundation, Madison County CASA and Tennessee Bar Foundation. 

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Federal Law CLE to Focus on Pre-Trial Issues

This year’s annual Federal Practice CLE on July 28 will focus on pre-trial issues, including presentations on pleadings, pre-answer motions and related strategies. Additional sessions will explore amendments to the Federal Civil Rules, which took effect in December 2015, and their impact on practioners. Finally, the program will look at rules related to expert disclosures and alternative dispute resolution techniques.

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The Continuing Struggle Over Class Action Waivers in Arbitration

The issue of mandatory arbitration of employment and consumer disputes continues to be controversial. The principal bone of contention appears to be the requirement that the employee or consumer waive the right to participate in class or collective actions, so that his or her sole recourse is the pursuit of individual claims in arbitration. No matter how employee- or consumer-friendly the arbitration provision is, if it contains a class action waiver, neither the plaintiffs’ bar nor consumer advocacy groups will like it.

But such provisions have survived judicial scrutiny in cases governed by the Federal Arbitration Act. In AT&T Mobility v. Concepcion, the Supreme Court held the California rule that a class-action waiver is per se unconscionable could not be used to avoid an agreement to arbitrate because it discriminated against arbitration and was thus contrary to the public policy in favor of arbitration enacted in the FAA.  563 U.S. 333 (2011). Thus, the opponents of employment and consumer arbitration were pushed into other avenues, legislative and regulatory, to voice their displeasure.

They have not had much success in Congress. Numerous bills to preclude pre-dispute consumer and employment arbitration agreements have been introduced in Congress but have not advanced very far. The Dodd-Frank Act, passed in 2010, however, did command both the SEC, and the consumer protection agency it created, to study the issue of mandatory arbitration and enact appropriate regulations. The Act also prohibits pre-dispute arbitration provisions in mortgage agreements.  15 U.S.C.A. § 1639c(e). Possibly other regulations are forthcoming.

By Executive Order, President Obama has restricted the award of federal contracts to companies that have mandatory arbitration plans for employees. Exec. Order No. 13673, 79 FR 45309 (July 31, 2014).

Neither of these measures has so far made much of a dent in employment and consumer arbitration.

The National Labor Relations Board got into the act in 2012. In the case of D.R. Horton, Inc., 357 N.L.R.B. 184 (2012), the NLRB held that the adoption of a mandatory arbitration plan for employees containing  a class and collective action waiver was unlawful because such provisions are an unfair labor practice under Section 7 of the National Labor Relations Act, which protects the right of employees to act in concert.

D.R. Horton petitioned for review of this ruling by the United States Court of Appeals for the Fifth Circuit, which overturned the Board in 2013.  D.R. Horton, Incorporated v. National Labor Relations Board, 737 F.3d 344 (5th Cir. 2013).  The Court held the FAA and the Supreme Court’s decisions interpreting it prevailed because the NLRA was not intended to repeal the application of the FAA by implication.

The NLRB did not accept the Fifth Circuit’s decision. It struck down a similar dispute resolution plan in Murphy Oil USA, Inc. and Sheila M. Hobson. Case

10–CA–038804 (October 28, 2014). Murphy Oil asked the Fifth Circuit to review the ruling, and the Board petitioned for hearing en banc, hoping to change the Court’s mind. But the Fifth Circuit did not budge. It granted the petition for review, denied the en banc hearing, and overturned the Board’s decision. Murphy Oil USA, Incorporated v. National Labor Relations Board, No. 14-60800 2015 WL 6457613 (2015).

But the NLRB is not going away quietly, although it does appear to have given up on the Fifth Circuit. It has decided similar cases in Arizona and California, among other venues, consistently with its previous holdings in D.R. Horton and Murphy Oil.  See Amex Card Services Company, Case 28-CA-123865 (Nov. 10, 2015), and ISS Facility Services, Inc. and United Food and Commercial Workers Union, Local 99, Case 28-CA-126024 (April 7, 2016).  Doubtless the Board is hoping its reasoning will fare better with the Court of Appeals for the Ninth and other Circuits than it did with the Fifth.

The Ninth Circuit is one of three circuits that have cited the Fifth Circuit’s decision in D.R. Horton favorable in dicta. Richards v. Ernst & Young, 744 F.3d 1072, 1075 n. 3 (Ct. App. 9th Cir. 2013).  See also, Sutherland v. Ernst & Young, LLP, 726 F.3d 290, 297 n. 8 (2d Cir. 2013) and Owen Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013.)   Still, there is the possibility of a split in the circuits, which will mean the issue will likely ultimately reach the Supreme Court.

In the meantime, and probably thereafter, the debate will continue.

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Letter from the Chair

The Dispute Resolution Section of the TBA is concluding a very successful year. We helped present a well-received series of CLE webcasts in November and December, and our ADR Forum at the Bar Center in April was the best-attended in years.

The past year also showed great strides in the acceptance of the practice of Collaborative Law. Based on the statistics compiled by the ADR Commission, the popularity of mediation continues to be strong. Based on the decisions of the Court of Appeals, arbitration -- while more controversial than mediation -- continues to be used widely as well. (My parting “gift” to our section members is a piece I have written on arbitration, class action waivers and the NLRB.)
 
I would like to thank the TBA staff, all of the members of the Section’s Executive Council, and all of the volunteers who gave their time so generously to speak at our webcast and forum. All of our successes were truly group efforts, and show that the value the TBA gives its members is composed in equal measure of its staff’s dedication and our members’ generosity with their time and talents. I am sure that next year under the leadership of Linda Warren Seely will be even better.
 
Bob Arrington
Section Chair, 2015-2016

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Register Today for the 135th Annual TBA Convention

Join us on June 15-18 in Nashville for the 135th Annual Convention! Registration for the 2016 TBA Convention includes:

  • free access to all TBA CLE programming;
  • the Opening Reception;
  • the Bench Bar Programming and Luncheon;
  • Law School and general breakfasts;
  • the Lawyers Luncheon;
  • the Thursday evening Joint (TBA/TLAW/TABL) Reception;
  • the Thursday night dinner and entertainment at the George Jones Museum;
  • and the Friday night Dance Party.

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Letter from the Chair: Forum Covers Many Types of ADR

Most lawyers who litigate don’t handle only one type of case, and most law firms certainly don’t. While some aspects of mediation and arbitration are universal, both lawyers and neutrals know there are differences that arise out of subject matter. So we have put together for the April 22 section-sponsored Alternative Dispute Resolution Forum, segments on employment mediation and arbitration, health care dispute resolution, construction mediation and domestic relations mediation. We’ve added to that mix presentations on the application of neuroscience to ADR and ADR ethics. This seminar may not quite have something for everyone, but it almost certainly have something for somebody in every law office in Tennessee. Don’t miss it!
 
Bob

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ADR Update

ADR and settlements in the news

Tom Brady Wins “Deflategate” Appeal in District Court. In National Football League Management Council v. National Football League Players Association, Nos. 15 Civ. 5916 (RMB)(JCF) and 15 Civ. 5982 (RMB)(JCF) (Sept. 3, 2015), appeal pending (2d Cir. Ct. App.), the court overturned Roger Goodell’s suspension of New England Patriots quarterback, Tom Brady, for participating in a conspiracy to deflate footballs during the AFC championship. Generally courts do not get involved in arbitration between parties who have agreed to arbitrate disputes. However, the court has authority to hear appeals under the Federal Arbitration Act (FAA) if certain grounds are met. 9 U.S.C. §10. In this case, the issue involved whether the arbitrator’s award drew its essence from the collective bargaining agreement (CBA) between the players and the NFL. Under CBA, Roger Goodell, as commissioner, had authority and discretion to serve as the hearing officer in the appeal. CBA Article 46 §2(a)). But the arbitrator must apply the CBA in a plausible way and act within the scope of his or her authority. The court found Tom Brady was prejudiced and overturned Goodell’s decision to suspend Brady. Goodell had relied on the integrity of the game and competitive rule policies that are not applied to players in the CBA. In addition, the court found that Brady was denied access to key witnesses and lacked notice of the discipline for the actions he was accused of. The court noted there were inconsistencies in the way Brady was punished: players in the past have never been suspended for equipment tampering, and the punishments used were based on the NFL steroid policy. The court held that the process was fundamentally unfair. Copy of District Court’s opinion available at http://www.nysd.uscourts.gov/cases/show.php?db=special&id=484. The NFL's appeal to the Second Circuit Court of Appeals is pending, with oral argument set for March 3, 2016 after the 2016 Super Bowl. See "NFL 'Deflategate' appeal to be heard March 3, after Super Bowl," available at http://www.reuters.com/article/us-nfl-brady-idUSKBN0TC27P20151123.

IRS appeals arbitration program eliminated. Effective September 2015, the IRS eliminated its appeals arbitration program due to lack of demand. Under the program, taxpayers and the IRS Office of Appeals were permitted to jointly request binding arbitration on any issue unresolved at the conclusion of the appeals process. Over the fourteen-year period the program was available, only two cases were resolved using arbitration. Taxpayers may still request mediation of unresolved issues that remain after completing settlement discussions in the appeals process. Internal Revenue Bulletin at http://www.irs.gov/irb/2015-38_IRB/ar06.html.

Cooper to Serve as Monitor in Daynmar College Settlement. Former Tennessee Attorney General Robert E. Cooper Jr. will serve as compliance monitor in a $12.4 million settlement reached by the Kentucky Attorney General and Daynmar College in a consumer protection lawsuit. The settlement provides debt relief, cash payments, and injunctive terms over Daynmar’s future operations. An estimated 12,294 students are eligible. The Owensboro, Kentucky school will be monitored over the next two years. Full story at http://migration.kentucky.gov/Newsroom/ag/daymarsettlement.htm

Microsoft and Google end patent war. (Oct. 2, 2015). Microsoft and Google dismissed multiple patent lawsuits they have been fighting for years. The companies will dismiss up to 20 lawsuits. They agreed “to collaborate on certain patent matters and anticipate working together in other areas in the future.” The initial lawsuit began when Microsoft claimed Google was using their company’s technology without paying royalties. Full story here.

Caselaw Update

Selected Sixth Circuit Cases

Second ground for vacatur of arbitration award must be addressed by trial court. In Bernard J. Schafer; Henry Block v. Multiband Corp., No. 14-2518 (6th Cir. October 20, 2015) (not for publication), the Court addressed the effect of its earlier decision in Schafer v. Multiband Corp., 551 F. App'x 814, 820-21 (6th Cir. 2014) ("Schafer I") (holding arbitrator did not manifestly disregard the law in concluding that Bernard Schafer and Henry Block's indemnification agreements with Multiband Corporation were void). Schafer I reversed the district court's judgment vacating an arbitration award and remanded the case for further proceedings. On remand, Schafer and Block argued that the district court was required to rule on a second theory for vacating the arbitration award, involving stock fraud claims. They asserted that the arbitrator did not provide a full and fair hearing, did not given notice that he was deciding those stock fraud claims, and did not allow them to present evidence on those claims. The district court refused to hear this claim, reasoning that Schafer I precluded review of the second argument. Conceding that Schafer I included some unclear language, the Court of Appeals held that Schafer I did not decide Schafer and Block's second argument for vacatur, and the district court should address that argument in the first instance. It did not address Multiband’s res judicata argument which is to be addressed on remand.

In Skylar Gunn v. NPC International, Inc., William Harris v. NPC International, Inc., Candace Jowers v. NPC International, Inc., Tiffney Penley v. NPC International, Inc., Leah Redmond v. NPC International, Inc., Case Nos. 14-6036, 14-6040, 14-6041, 14-6042, and 14-6044 (6th Cir. August 28, 2015) (not for publication), the Court addressed whether the defendant employer failed to timely assert its right to arbitration, and therefore waived its contractual right to insist on arbitration of employees' claims for unpaid compensation. Affirming the district court, the Court of Appeals held the employer's litigation actions were completely inconsistent with reliance on the arbitration agreement and resulted in actual prejudice to the plaintiffs. The Court relied on Johnson Associates Corp. v. HL Operating Corp., 680 F.3d 713, 716 (6th Cir. 2012) and Hurley v. Deutsche Bank Trust Co., 610 F.3d 334, 338 (6th Cir. 2010), and distinguished Shy v. Navistar Int'l Corp., 781 F.3d 820, 827-28 (6th Cir. 2015). Here, before it moved to arbitrate, the employer delayed for almost 15 months, it engaged in settlement negotiations, it had filed several motions (some dispositive), and it had received unfavorable rulings on initial dispositive motions. The Court also rejected the defendant’s claim that, in these collective actions, the waiver issue should be considered individually as to each plaintiff (evaluating each opt-in plaintiff from the date of opt-in).

Tennessee ADR Cases

Arbitration

In a 32 page opinion, the Court of Appeals in Mid-South Maintenance Inc., et al. v. Paychex Inc., et al., No. W2014-02329-COA-R3-CV (Tenn. Ct. App. August 14, 2015) addresses a number of arbitration issues. The plaintiffs and Paychex, Inc. had expressly agreed to arbitrate any disputes arising from their contract. They also agreed that New York law governed. The plaintiffs later sued Paychex and one of the Paychex’s employees who had not signed the arbitration agreement (the non-signatory employee). The claims were for breach of fiduciary duty, negligence, and aiding and abetting conversion. The trial court denied the defendants’ motion to compel arbitration on the ground that the plaintiff's tort claims were outside the scope of the arbitration agreement, citing Tennessee law. The Court of Appeals reversed, holding that, pursuant to federal and New York law, and the arbitration agreement’s delegation clause, the arbitrator (not the trial court) is the proper tribunal to determine issues regarding the scope and unconscionability of the arbitration agreement. The Court also concluded that the plaintiffs' claims against the non-signatory employee were intertwined with the claims against Paychex, thus all disputes regarding arbitrability of claims against the non-signatory employee must also be resolved by the arbitrator. In the course of its decision-making, the Court addressed a number of issues, including: 1) choice of law, 2) whether the court (not the arbitrator) determines arbitrability where the plaintiffs claimed they never received a copy of the purported arbitration agreement, 3) whether the plaintiffs had waived the arbitrability issue by failing to list it as an issue in their appellate brief, 4) whether the parties’ agreement to have AAA rules apply meant that, per the AAA rules, the arbitrator would decide his or her own jurisdiction, 5) whether to address an unconscionability issue not addressed by the trial court, and 6) severability of the arbitration agreement from the underlying contract. Copy of opinion at http://www.tba.org/sites/default/files/midsouthmaintenance_081415.pdf.

Akilah Louise Wofford, et al. v. M. J. Edwards & Sons Funeral Home Inc., et al., No. W2015-00092-COA-R3-CV (Tenn. Ct. App. November 23, 2015) concerns enforceability of an agreement to arbitrate a dispute between a consumer and funeral home. The consumer signed a two page funeral services contract which included a short, completely one-sided, mandatory arbitration clause and referred to a “Part 3” of the contract. Part 3 included additional arbitration provisions. The funeral home did not provide a copy of Part 3 to the consumer to read. Arbitration clauses are not common in funeral services contracts in Memphis. The contract was presented on a “take it or leave it” basis after the funeral home had already embalmed the body of the deceased and performed additional services to the plaintiff. The trial court refused to compel arbitration, finding no meeting of the minds as to the arbitration agreement. On appeal, the funeral home argued that the Court of Appeals should consider not only the signed agreement, but also the Part 3 document allegedly incorporated by reference into the parties' contract. The Court held there was no meeting of minds regarding the additional Part 3 document that had additional arbitration provisions, so it was not properly incorporated by reference into the parties' contract. Thus, the consumer was not bound by its provisions. Further, the arbitration provision actually contained in the parties' contract is an adhesion contract that is unenforceable because it is beyond the expectations of an ordinary person. Opinion at http://test.tba.org/legal-opinion/akilah-louise-wofford-et-al-v-m-j-edwards-sons-funeral-home-inc-et-al.

Optional arbitration agreement signed by a patient’s health care agent enforceable as a “health care” decision. In Billy Bockelman, et. al. v. GGNSC Gallatin Brandywood LLC, et. al., No. M2014-02371-COA-R3-CV (Tenn. Ct. App. September 18, 2015), the decedent’s attending physician had determined she lacked lack mental capacity. She had previously given an agent the power to make “health care decisions,” and was subsequently placed in a nursing home. The agent completed all nursing home admission contracts on behalf of the decedent, including an optional arbitration agreement. After the patient’s death, the agent sued the nursing home. The trial court granted the nursing home’s motion to compel arbitration. On appeal, the agent claimed she lacked authority to sign the arbitration agreement because the patient was competent at the time of admission, the agreement was not a “health care decision,” and the arbitration agreement was unconscionable. The Court of Appeals upheld the trial court’s order compelling arbitration. First, clear and convincing evidence, based on the attending physician’s determination, showed the patient was incompetent, even though other medical records included some evidence of competence. Second, entering into an arbitration agreement as part of a nursing home admission is a “health care” decision because it is part of the admission process. Finally, the ADR Agreement is not unconscionable it was optional, it had mutuality, and its terms were not misrepresented by the nursing home Opinion at https://www.tncourts.gov/sites/default/files/bockelmanbilly.opn_.pdf.

Settlements; Releases

In Dana Jo Stricklin v. Jerone Trent Stricklin, No. W2015-00538-COA-R3-CV (Tenn. Ct. App. September 21, 2015) the Mother sought to modify the parties' permanent parenting schedule. During a trial recess that followed the Mother’s testimony, the parties settled. The Mother’s attorney announced the parties had agreed to a new parenting plan. The agreed-upon terms were announced in open court in the parties’ presence. The judge stated he was “glad the parties were able to work out their dispute ‘for the best interest of the child,’” but did not make any findings on best interests. The record on appeal does not include a transcript of the Mother’s testimony. After the trial court entered an order approving the modified plan, the Father stated he did not consent to the plan. The trial court denied the Father’s motion to set aside the order. The Court of Appeals, relying on Harbour v. Brown for Ulrich, 732 S.W.2d 598 (Tenn. 1987), held that parties’ consent was not required at the time of entry of the order because the parties had announced their agreement in open court where the terms of the agreement were determined. Nevertheless, the order was not legally sufficient. Citing Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010) and Fletcher v. Fletcher, No. M2010-01777-COA-R3-CV, 2011 WL 4447903 (Tenn. Ct. App. Sept. 26, 2011), the Court held that the trial court's order did not contain a finding that the modified parenting plan was in the child's best interests. Therefore, the Court of Appeals vacated the order and remanded the case for further proceedings. Opinion at http://www.tba.org/sites/default/files/stricklind_092115.pdf.

Settlement of will must be in good faith. In In Re Estate of Vide Mae McCartt, No. E2014-02185-COA-R3-CV (Tenn. Ct. App. Sep. 25, 2015), five grandchildren contested the decedent’s will. After mediation, the grandchildren and living children entered into a settlement agreement which the trial court approved. One of the decedent’s non-marital grandchildren (the petitioner) was not part of the settlement agreement. She brought an action, arguing that she was entitled to a share of the estate under the agreement and that her siblings perpetrated a fraud by representing that the decedent had only three children and heirs at law when she actually had four children. The defendants argued that the petitioner was time barred and that res judicata applied. The trial court granted defendants’ motion to dismiss for failure to state a claim. The Court of Appeals found that any interested party may bring a will contest, and all other interested parties are free to join. Those involved in litigation may settle if done in good faith. In the present case, the complaint’s allegations raise a legitimate issue of whether the heirs were acting in good faith. The Court vacated the judgment and remanded for further proceedings. Opinion at https://www.tba.org/sites/default/files/mccarttv_092515.pdf.

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Editor's Note: Marnie Huff’s law clerk, Matthew Oberlin, assisted in preparing this ADR Update. Marnie is a member and past Chair of the TBA Dispute Resolution Section. As a member of the Nashville Bar Association’s Board, she is liaison to the NBA ADR Committee and Fee Disputes Committee. She is also active in the ABA Section of Dispute Resolution and Section of Litigation’s ADR Committee. She is past co-chair of the ABA Advanced Mediation and Advocacy Skills Institute. Marnie is an independent mediator, arbitrator, and workplace conflict management consultant in Nashville. Her website is at www.MargaretHuffMediation.com.

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Register Today for the TBA Dispute Resolution Law Section CLE

Register today for the TBA Dispute Resolution Law Section annual CLE program, which is scheduled for April 22, 2016. Click here for registration information.

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Some History About a Little Known Government Agency that is Often Called 'America's Peacemaker'

By Stephen Shields

I was asked by an acquaintance if I would be interested in attending a presentation by Mr. Grande Lum, the Director of the Community Relations Service (CRS) this past October. Sure – but I was puzzled: “Who is he and what is CRS?” I shortly found out the answer from Mr. Lum himself. Mr. Lum is the Director of the Community Relations Service, a division of the United States Department of Justice. It is the department’s “peacemaker” for community conflict. He is the ninth director of the community relations service and was confirmed by the U.S. Senate on June 29, 2012. Lum was a mediator and the director of the Hastings School of Law Mediation Clinic before he was appointed director. His presentation was filled with words that would be familiar to any mediator – trust, trustworthy, collaboration, convening. As a result of that presentation, I decided to do some research about the CRS. As it turns out, it was established as Title X of the 1964 Civil Rights Act. Its website states its purpose:

“The Community Relations Service responds to communities across the nation to promote peaceful resolution of conflicts and tensions.  Conflict resolution specialists strategically located in 10 regional offices and four field offices through the country respond to meet the unique needs of communities in the states and U.S. territories they serve.”

All CRS services are provided free of charge to the communities and are confidential. CRS works in 50 states and U.S. territories. Grande Lum described it this way in an audio transcript:

“CRS is often called America’s ‘Peacemaker.’ We accomplish that by providing impartial mediation, facilitation, training and consulting services to help communities enhance their ability to independently prevent and resolve future conflicts.  Our experienced conflict resolution specialists are strategically located in 15 offices through the United States to serve your community.”

CRS, although a division of the U.S. Department of Justice, does not take sides in a dispute and it does not investigate, prosecute, impose solutions, assign blame or assess fault. Its purpose is to help communities resolve difficult disputes. 

In 1964, President Lyndon Johnson appointed LeRoy Collins (former governor of Florida) to be the first director of the community relations service. He was dispatched to the march on Selma in 1965. Collins, who had never met Martin Luther King Jr., brokered a deal in which King would stop the Selma march on the bridge and then turn around in exchange for which the Alabama state police would agree not to use force. Both King and the officer in charge of the Alabama police kept their word. King led a brief prayer and song and did an about-face. The CRS’ arrival (LeRoy Collins) had gone unannounced as the agencies establishing law required it to operate without publicity. Collins remained in Alabama to negotiate with Montgomery officials. If you do some research, you will find a photograph of Collins, King, Andrew Young, Coretta Scott King and Ralph Abernathy by his side.

As a bit of a “history buff” and “peacemaker," I was glad to learn about the agency and its unique role in peacemaking and dispute resolution in this country. 

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Letter from the Chair

In November, the New York Times published a series of stories about arbitration, followed by an editorial, which has been controversial. Many, including the undersigned, believe the news reports and editorials got the facts wrong and actually misrepresented much of what is really going on in domestic arbitration. But the purpose of this message is not to engage in refutation of the Times, but to speak to a part of its series I found genuinely troubling.

The Times interviewed some arbitrators who said they had not disclosed conflicts of interest to parties during selection, and others who said their decisions had been influenced by concern that a party would not engage them again if they made a decision adverse to them. None of these persons were from Tennessee, thank goodness. But wherever they are from, these practices are unethical. Bluntly, an arbitrator whose principal concern is whether he or she will be retained again is in the wrong business.
 
I am used to detailed conflicts disclosures during the selection process. These are required by forum administrators such as the American Arbitration Association, the CPR Institute and FINRA; and as a matter of practice, I and most arbitrators I know make detailed disclosures even if the case is not administered by one of these forum providers.
 
Arbitrators are not licensed. Many arbitrations are ad hoc, in which someone is engaged outside of a forum that has adopted detailed disclosure requirements and that requires neutrals on its roster to adhere to written ethical standards.
 
For this reason, perhaps it is time for the Tennessee Supreme Court to add an Appendix Rule 31 to require that all Tennessee attorneys who accept engagement as arbitrators, whether or not under a Rule 31 court-annexed appointment, take steps to assure ethical compliance and make specified disclosures during the selection process. Tenn. S. Ct. Rule 31, Appendix A already requires neutrals to make disclosures of troubling relationships, to maintain impartiality and to decline appointment if impartiality is not possible. But these apply only to neutrals chosen pursuant to Rule 31. We may need something a bit broader.
 
Such an appendix could include:

  • Incorporation of published ethical standards specific to arbitration into Rule 31.
  • Required specified and documented disclosures to parties when under consideration for engagement, and a mandatory disclosure form.
  • Required annual or semi-annual continuing professional education specifically designed for arbitrators.

I have no information that Tennessee arbitrators have fallen down in any of these respects. But would not requirements like these boost public and party confidence and help make sure a problem does not develop in the future?
 
I encourage section members to voice their opinions on this subject.
 
Bob Arrington
Section Chair

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Mediators Use Neuroscience Research to Calm Clients

The ABA Journal highlights how mediators and other practitioners of alternative dispute resolution are using the research of neuroscientists to help calm emotions during mediations. Paul Zak, director of the Center for Neuroeconomic Studies, has taught mediators how to boost the chemical oxytocin during mediation. “When you increase oxytocin, you make [clients] more amenable to you and make it easier to persuade them,” Zak said.

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Web Series on Employee Dispute Resolution Plans

A four-part webcast series will begin Nov. 4 at noon for lawyers and mediators regarding employee dispute resolution. Courses include Creating and Managing an Employee Dispute Plan, Dispute Resolution in Health Care Settings, Proposed Collaborative Law Rule for Family Law Mediators and Interaction Between Mediators and Lawyers. The series is worth 4.5 credits of CLE.

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Lawyers, Judges Named to Judicial Boards

The Administrative Office of the Courts has released updated rosters for three boards and commissions. On the Tennessee Supreme Court Alternative Dispute Resolution Commission, William Wray was appointed to serve the remainder of James Lauderback’s term. On the Judicial Ethics Committee, Judges Timothy Irwin, Alan Glenn and Betty Thomas Moore were reappointed to an additional term. And on the Board of Judicial Conduct, all members were reappointed with the exception of David Wedekind, who was replaced by Edward Phillips. In addition, Judges Kenny Armstrong, Norma McGee Ogle and Dee Gay were appointed to fill vacancies created by the appointment of Justices Jeffrey Bivins and Holly Kirby to the Supreme Court and the appointment of Judge Timothy Easter to the Court of Criminal Appeals.

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New Mediation Firm Opens in Blount County

Attorney and former Chattanooga area prosecutor Josh Jones announced the launch of East Tennessee Mediation Services, a mediation firm in Maryville offering comprehensive mediation and alternative dispute resolution services to all of Tennessee. The Chattanoogan has more.

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AOC Announces Boards and Commissions Updates

The Administrative Office of the Courts recently released updated membership lists for its various board and commissions, including the Tennessee Code Commission, Alternative Dispute Resolution Commission, Board of Professional Responsibility and Integrated Criminal Justice Steering Committee.

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Service Thursday for Pro Bono, Mediation Trailblazer

Knoxville lawyer Milli Cunningham, the first pro bono director for the Knoxville Legal Aid Society, died Saturday (April 12). Cunningham entered the University of Tennessee College of Law in 1973 after putting her husband through school, following him to three international assignments and raising two children, Knoxnews reports. Following graduation, she joined the school’s legal clinic and helped establish its first family law unit. At the Knoxville Legal Aid Society (now Legal Aid of East Tennessee), Cunningham was influential in recruiting private attorneys to provide pro bono services. She also was an early proponent of increased legal protections for domestic violence victims. After five years with Legal Aid, Cunningham opened her own family law practice with an emphasis on mediation and collaboration. A memorial service will take place at Sequoyah Hills Presbyterian Church, 3700 Keowee Ave., Knoxville on Thursday at 2 p.m. In lieu of flowers, memorials may be made to the church, Erskine College, CONTACT Care Line or Jewish Voice for Peace.

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Grants Available for Parent Education, Victim Offender Reconciliation

The Tennessee Administrative Office of the Courts is accepting applications for two grants funding the Parent Education and Mediation Fund and the Victim Offender Reconciliation Program. The deadline for both grants is April 11.

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