News

Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

read more »

Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

read more »

TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

read more »

CLE Outlines How to Change Your Practice to Meet Market Demands

The fourth and final CLE in the “Modern Law Practice Series” will explore emerging trends in the delivery of legal services and how focusing on consumer behavior could benefit your law firm. This session will examine the ways in which consumer-facing companies like Avvo and LegalZoom have capitalized on tailoring services to the needs of the modern legal client and how you can adjust your practice to meet those same demands. The program will be held April 13, and will be available in person and on-demand.

read more »

Discover How Technology is Changing Dispute Resolution

This year's Dispute Resolution Forum in Nashville will focus on the changing landscape of mediation from live to digital. Speakers at the April 10 program will address the implications of online dispute resolution technology and provide practical examples of this new technology in action. Another session will address how online dispute resolution can improve access to justice. Further sessions will cover the ethical issues arising out of online dispute resolution.

read more »

Learn How Online Dispute Resolution and Technology are Changing the Practice

This year's Dispute Resolution Forum will focus on the changing landscape of mediation from live to digital. Speakers at the April 10 Nashville program will address the implications of online dispute resolution technology and provide practical examples of this new technology in action. Another session will address how online dispute resolution can improve access to justice. Further sessions will cover the ethical issues arising out of online dispute resolution.

read more »

ADR Update

I. Resources

Attached to this update is a copy a Checklist for Conversation with Other Lawyers, Appendix M from John Lande, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money (2d Ed. 2015), reproduced with permission of the author. The January enews from the TBA Dispute Resolution Section included Lande’s Checklist for Preparing Clients for First Negotiation Session. Lande’s well-regarded book was published by the ABA.

II. ADR in the News

Arbitration cases in U.S. Supreme Court. In January, the Supreme Court granted cert in three cases, National Labor Relations Board v. Murphy Oil USA, Epic Systems v. Lewis, and Ernst & Young LLP v. Morris, to decide the enforceability of class action/collective proceeding waivers requiring individual arbitration of employer-employee disputes under the Federal Arbitration Act. The federal government argues they are not, because the National Labor Relations Act protects concerted activities by employees regarding terms or conditions of employment. National Labor Relations Board v. Murphy Oil USA, Inc., et al.,No. 16-307 (question presented: “Whether arbitration agreements with individual employees that bar them from pursuing work-related claims on a collective or class basis in any forum are prohibited as an unfair labor practice under 29 U.S.C. 158(a)(1), because they limit the employees' right under the National Labor Relations Act to engage in ‘concerted activities’ in pursuit of their ‘mutual aid or protection,’ 29 U.S.C. 157, and are therefore unenforceable under the saving clause of the Federal Arbitration Act, 9 U.S.C. 2.”), docket at https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-307.htm; Epic Systems Corporation v. Jacob Lewis, No. 16-285 (question presented: “Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”), docket at https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-285.htm; Ernst & Young, LLP, et al. v. Stephen Morris, et al., No. 16-300 (cert petition filed September 8, 2016: issue similar to Epic Systems case) docket at https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-300.htm.          

Later, on February 8, 2017, the Court postponed argument in these cases until the October 2017 term, likely to avoid a 4-4 tie vote and making Judge Neil Gorsuch the deciding vote if his appointment to the Supreme Court is confirmed.

Scotusblog analyzes Gorsuch’s 10th Circuit arbitration decisions.Scotusblog has a good article on Judge Gorsuch's arbitration jurisprudence.Edith Roberts, "Judge Gorsuch’s arbitration jurisprudence" SCOTUSblog (Mar. 6, 2017, 10:33 AM), http://www.scotusblog.com/2017/03/judge-gorsuchs-arbitration-jurisprudence/.

III. Ethics; Uniform Family Arbitration Act

New Tennessee ethics advisory opinion: mediator’s final report to court when one party changes mind after settlement. On January 24, 2017, the Tennessee ADR Commission's Ethics Advisory Opinion Committee issued Advisory Opinion No. 2017-0001 involving a post-divorce mediation where the parties and counsel met to resolve a parenting issue. An agreement was reached and typewritten by the mediator with the assistance of both parties and their counsel. It was signed by both parties at the mediation. Later, on the same day, one party left a voicemail for the mediator that the party was unhappy with the agreement and wanted to withdraw it. The party also advised his/her counsel of this and did not want to proceed with the settlement agreement. Two issues were presented to the Ethics Advisory Opinion Committee: 1) "Should the [Rule 31] Mediator file the required report of Mediator per Rule 31 § 5(a) and state that the matter ‘did settle’ at the mediation despite one party’s notification that the party no longer agrees to the settlement agreement?" and 2) "Does Rule 31 § 5(a) prohibit the Mediator from filing the Mediator’s report with the court and stating that 'Parties executed a Settlement Agreement at the Mediation session' despite one party’s notification that it no longer agrees to the settlement agreement?" The Committee's response to the first question is, "Yes, the Mediator should file the required Report of Mediator and state that the matter ‘did completely settle’ at the mediation according to TSC Rule 31 § 5(a)." Its response to the second question is "No, Rule 31 does not prohibit the Mediator from filing the Mediator’s report with the court based on the factual background. In fact, Rule 31 § 5(a) mandates that the Mediator fill out the Report of Mediator in its entirety and file the Report of Mediator with the Court." Advisory Opinion No.: 2017-0001.

Tennessee ADR Commission’s online resources. The Commission hosts an online compilation of Mediation Opinions and Decisions and Resources for Mediators. Its Policies are at https://www.tncourts.gov/programs/mediation/resources-mediators/policies.

Two new guidance opinions from ABA Section of Dispute Resolution’s Committee on Mediator Ethical Guidance.  The ABA Section of Dispute Resolution’s Committee on Mediator Ethical Guidance issues guidance opinions based on the Model Standards of Conduct for Mediators. Although the Model Standards are not identical to Tennessee’s Rule 31, these opinions offer helpful analysis of issues mediators face. The Committee’s most recent opinions are summarized below. Prior opinions issued by the Committee on Mediator Ethical Guidance are available at http://apps.americanbar.org/dch/committee.cfm?com=DR018600.

Conflict of interest.  In a March 20 ethical guidance, the inquiry states, "As mediators, we promote our services to attorneys we know and who we have worked with before. If an attorney a mediator knows, either a personal friend or professional colleague, contacts the mediator about mediating a matter, or refers a matter for mediation, what if anything must the mediator disclose to the other party or parties? If disclosure is required, what is an appropriate disclosure that meets all ethical requirements? Is there anything that will definitely result in a mediator being disqualified?” Citing Model Standards of Conduct for Mediators II and III (2005), the Committee’s summary response states, “The mediator should disclose to prospective participants of a mediation any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. Standard III. A. A past professional relationship and a present friendship both could raise such a question. The mediator should disclose these relationships and invite the participants to inquire further. After this disclosure and if the participants consent, she/he may serve as the mediator." (SODR ____ [number not yet assigned], March 20, 2017). Read the complete opinion

Mediator excluded from negotiations – need to confirm settlement decisions were voluntary and informed. In an October 25, 2016 guidance, the inquiry states, "The mediation, in which both parties are pro se, proceeds up to a point, when both parties ask the mediator to leave the room. The mediator exits the room and checks back repeatedly to see if he's needed (which he is not). The parties settle the case and invite the mediator back into the mix, asking him to put into writing the terms of agreement they have reached. The mediator is concerned about whether he had sufficiently overseen the parties' interaction to be comfortable that there was not coercion, bad faith, etc. involved in reaching a final settlement. Under the Model Standards, what should the mediator do?”  Citing Standards I and VI, the guidance’s summary states: “A mediation is a process in which an impartial third party facilitates communication and negotiation and promotes decision making by the parties to the dispute. Assuming the described process could be a mediation, the parties’ exclusion of the mediator from some of their negotiations, highlights the tension between the parties’ right to self-determination as to process and outcome (Standard I) and the mediator’s obligation to conduct a quality process (Standard VI). The mediator should assess whether the parties’ decision to exclude him was voluntary and informed, should continue to offer services as mediator and should discuss with the parties how the agreement, reached out of his/her presence, was reached. However, while the mediator could discuss the parties’ agreement with them after their separate negotiation, she/he should decline their requests to act as anything more than a scrivener because, in doing so, the mediator risks assuming a different role, that of an attorney (Standard VI). Instead, the mediator should recommend that the parties consult independent counsel to draft the agreement.”

(SODR 2016-3 October 25, 2016) available at http://apps.americanbar.org/dch/committee.cfm?com=DR018600 (scroll down to SODR 2016-3 link).

ABA Supports Uniform Family Law Arbitration Act. On February 6, 2017, at the ABA Mid-Year meeting, the House of Delegates approved by consent Resolution 117A which states, “RESOLVED, That the American Bar Association approves the Uniform Family Law Arbitration Act, promulgated by the National Conference of Commissioners on Uniform State Laws, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.”  The Report accompanying the Resolution states that the Uniform Family Law Arbitration Act (UFLAA):

creates a statutory scheme for the arbitration of family law disputes. ... Although arbitration has long been used in the commercial context, it has recently begun to gain popularity in the family law sphere.

Under the UFLAA, a “family law dispute” is a contested issue arising under the state’s family or domestic relations law. Family law disputes typically include disagreements about marital property, spousal support, child custody, and child support.

  Under the Act, an arbitrator may not:

• grant a divorce;

• terminate parental rights;

• grant an adoption or guardianship of a child or incapacitated person; or

• determine the status of a child in need of protection.

The Act sets out arbitration procedures chronologically, from defining an arbitration agreement to providing standards for vacating a confirmed award. Many of the provisions of the UFLAA will be familiar to arbitrators and practitioners in the dispute resolution field. This is because the UFLAA is based in part on the Uniform Arbitration Act (1955) and Revised Uniform Arbitration Act (2000). The UFLAA’s provisions for arbitrator disclosure, award, appeals, and arbitrator immunity, among others, are drawn substantially from these earlier uniform acts.

Since family law disputes are different from traditional commercial disputes, however, the UFLAA contains some key provisions that do not appear in the Uniform Arbitration Act or Revised Uniform Arbitration Act. Many of these differences have to do with protecting vulnerable individuals during the arbitration process, such as children and victims of domestic violence. For instance, unless waived by the parties, the UFLAA requires arbitrators to be trained in detecting domestic violence and child abuse before arbitrating a family law dispute. If the arbitrator detects abuse, the arbitrator must stay the arbitration and refer the dispute to court. Likewise, if a party is subject to a protection order, the dispute will be referred to court for resolution.

Importantly, the UFLAA requires close judicial review of arbitration awards determining child-related issues. While an award regarding property or spousal support is subject to limited judicial review, a child-related award may not be confirmed by a court unless the court finds that the award complies with applicable law and is in the best interests of the child.  Also, de novo review of child-related awards is a bracketed alternative that a state can choose to enact. In addition, some states may want to exclude child-related disputes from arbitration altogether, and the Act provides an opt-out alternative for that purpose.

Another unique provision of the UFLAA relates to agreements to arbitrate a dispute that may arise in the future (often referred to as “pre-dispute agreements”). Pre-dispute agreements are generally permissible under the UFLAA, in accordance with the UAA and the RUAA.  If parties agree to arbitrate a future child-related dispute, however, then the parties must affirm the agreement to arbitrate at the time of the dispute before proceeding to arbitration.

After the court confirms an award, a party may request a modification under state law governing post-decree modifications. If the parties agree, modification actions can be resolved by arbitration.

The UFLAA is an overlay statute meant to work together with the state’s existing choice-of-law rules and contractual arbitration law. It provides a comprehensive, clear framework for the arbitration of family law disputes.

The Drafting Committee’s work is at www.uniformlaws.org, the Conference’s website. A direct link to the Uniform Family Law Arbitration Act is at http://www.uniformlaws.org/shared/docs/family%20law%20arbitration/UFLAA_Final%20Act_2016.pdf.

IV. Caselaw Update

A. U.S. Supreme Court

Court addresses when IDEA dispute resolution procedures must occur in ADA and Rehabilitation Act case. The issue in Fry ex rel. E.F. v. Napoleon Cmty. Schs., ___ U.S. ___, No. 15–497 (February 22, 2017) is the scope of an exhaustion of remedies requirement in 20 U.S.C. §1412(l), a provision of the Individuals with Disabilities Education Act (IDEA). That statute provides federal funds to states for furnishing a “free appropriate public education” to children with disabilities. It has administrative procedures for resolving disputes. Those procedures include the option of mediation. The Americans with Disabilities Act and the Rehabilitation Act also protect disabled children’s rights. Under the Handicapped Children’s Protection Act of 1986, a plaintiff suing under those or similar laws seeking relief that is also available under the IDEA must first exhaust IDEA administrative procedures. Here, a child with cerebral palsy had a trained service dog who assisted her with daily activities. The child’s school would not allow the dog to join her in kindergarten, stating that a full-time one-on-one human aide, provided as part of an individualized education program, rendered the dog superfluous. The Department of Education’s Office for Civil Rights found that the school’s determination violated the ADA and Rehabilitation Act. The child’s parents filed suit, seeking a declaratory judgment and monetary damages. The Sixth Circuit majority opinion, over the dissent of Judge Daughtrey, affirmed the district court’s dismissal for failure to exhaust IDEA administrative procedures. The Supreme Court vacated this decision. The Sixth Circuit applied the wrong standard. Exhaustion of IDEA administrative procedures is not necessary where the gravamen of the lawsuit is something other than denial of a free appropriate public education. Determining a complaint’s gravamen can come from asking whether the plaintiff could have brought essentially the same claim if the alleged conduct had occurred at a public facility other than a school, and whether an adult at the school could have make essentially the same claim. Courts should also consider the history of the proceedings, including whether a plaintiff had previously invoked IDEA’s formal dispute resolution procedures. Here, the parents’ complaint alleged only disability-based discrimination, without any reference to the adequacy of the special education services. But the record is not clear on whether the plaintiffs had invoked IDEA dispute resolution procedures and to what extent, thus requiring remand. Read the full opinion.

B. Selected Cases from U.S. Court of Appeals for the Sixth Circuit

Three month deadline to challenge arbitration award.  Tallakoy, LP v. Black Fire Energy, Inc.(6th Cir. Feb. 28, 2017) (not recommended for publication) involved the Federal Arbitration Act’s requirement that a party must challenge an arbitration award “within three months after the award is filed or delivered.” FAA §12. The FAA does not define “filed” or “delivered.” AAA rules (which applied in this case) provide that parties shall accept as notice and delivery “the placing of the award  . . . in the mail addressed to the parties or their representatives at their last known addresses, personal or electronic service of the award, or the filing of the award in any other manner that is permitted by law. Am. Arb. Ass’n Com. Arb. R. & Mediation Proc. R. 49. The parties had entered into a Revenue Participation Agreement ("RPA"), in which they agreed that any disputes arising from that contract would be resolved through arbitration. Tallakoy sued Black Fire, alleging that Black Fire induced it to invest in a sham mining operation. Black Fire successfully moved to dismiss that case (Tallakoy I) because the RPA required arbitration of the dispute. Thereafter, an arbitration was conducted without the participation or involvement of Black Fire. On Sept. 23, 2014, an arbitration award was issued in favor of Tallakoy. On Oct. 24, 2014, Tallakoy filed a motion to enforce the award in the previously dismissed case. On December 23, 2014, Tallakoy filed a complaint (in Tallakoy II), with the award attached, seeking to enforce the award. The defendants moved to dismiss Tallakoy II, arguing that the award was invalid and unenforceable. The district court construed this as a motion to vacate the award and denied it as untimely. Defendant Black Fire filed a motion to vacate the judgment and for relief from the judgment. The district court denied both motions. The district court construed the FAA’s term “filed” to mean “issued” by the arbitrator. The Court of Appeals disagreed. AAA Rule 49 does say that placing an award in the mail can be the date of delivery, but there was no evidence that the arbitrator mailed or otherwise “delivered” a copy of the award to Black Fire.Therefore, Tallakoy did not establish that the three month deadline began to run on Sept. 23, 2014. The October 24, 2014, motion did not trigger the three month deadline because it was filed in a dismissed and administratively closed case and was not served on unrepresented parties including Black Fire. The Dec. 23, 2014, complaint was properly served on all parties so it was “delivered” under AAA rules. The Dec. 23 date may be the proper trigger date if no earlier date applies. It is possible that earlier dates do apply, such as the date of certified mail delivery asserted by Tallakoy, but the district court did not address or make any factual findings as to the alternative dates. The Court of Appeals reversed and remanded the case.

Proof of arbitration agreement through exemplar documents; delegation of “gateway decisions” to arbitrator. In Danley v. Encore Capital Grp., Inc. (6th Cir. Feb. 22, 2017) (not recommended for publication), one issue involved an order compelling arbitration. The defendants had purchased plaintiffs' stale credit card debts, and attempted to collect the debts plus post-"charge off" interest. The plaintiffs claimed this violated federal and Michigan debt-collection laws. The plaintiffs' credit card account agreements had arbitration agreements that included delegation clauses. The Court of Appeals affirmed the district court's ruling that the agreements were enforceable and the delegation clause provided that an arbitrator would consider "gateway" challenges to the arbitration provisions. The plaintiffs did not come forward with any rebuttal evidence and thus unsuccessfully challenged the defendants’ evidence of the contracts through use of exemplar agreements instead of original agreements between the plaintiffs and the credit card companies. Although courts generally decide challenges to formation of arbitration agreements per Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, 296 (2010), here the plaintiffs did not clearly argue that their challenges involved formation of the agreements. They did attack the validity of the agreements. Given the clear and unmistakable delegation clauses in their agreements, this issue is for the arbitrator to decide.  See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68 (2010).

Plaintiff fails to show denial of regular and timely processing of her grievances. In Toni Horn v. City of Cleveland, No. 16-3175 (6th Cir. Jan. 5, 2017) (not recommended for publication), one of the issues relates to an arbitrated failure-to-promote grievance filed under a collective bargaining agreement. The grievance procedure took years (from approximately November 2012 until March 2015). The arbitrator found that the delay was influenced by pending court litigation involving similar factual issues. The Court of Appeals, affirming the district court, rejected the employee's retaliation claim that she was denied regular and timely processing of her grievances.

Victory against robo-caller. In Kasie Stevens-Bratton v. Trugreen, Inc., No. 16-5161 (6th Cir. Jan. 11, 2017) (not recommended for publication), a lawn care company’s former customer filed a complaint alleging violations of the Telephone Consumer Protection Act. She also sought class certification. The Court of Appeals rejected the customer’s unconscionability claim. But distinguishing Huffman v. Hilltop Cos., LLC, 747 F.3d 391, 393 (6th Cir. 2014), the Court reversed the district court’s order compelling arbitration and denying class certification. The agreement to arbitrate in the lawn care agreement had expired before the majority of relevant events had occurred. All of the offending telemarketing calls occurred after termination of the agreement. The agreement did provide that the company could call the customer about possible future services, but the Court determined that this provision was ambiguous as to whether “future services” meant only future services prior to termination of the agreement or gave the company the right to contact the former customer indefinitely. Construing the ambiguous contract against its drafter, the Court read the provision with the interpretation that favored the customer. The lower court had not made findings of fact or conclusions of law on the plaintiff’s motion for class certification, so the case was remanded for a hearing on that motion.

Court lacked appellate jurisdiction over interlocutory appeal of arbitration order. The Court in Preferred Care of Del., Inc. v. Estate of Hopkins, ___ F.3d ___ (6th Cir. 2017) dismissed the case for lack of appellate jurisdiction. The lower court had granted a motion to compel arbitration, enjoin the plaintiff from proceeding in a parallel state court action, and stay the federal case until the arbitration was completed. Given the provisions in the district court's order, no interlocutory appeal is permitted under 9 U.S.C. §16. The more general statute regarding appeals from injunction orders, 28 U.S.C. §1292(a), does not apply in this case.

Court lacked appellate jurisdiction over interlocutory appeal of arbitration order.  In Brandenburg Health Facilities v. Mattingly, No. 16-6168 (6th Cir. February 24, 2017) (not recommended for publication), the district court granted a motion to compel arbitration and enjoin state court proceedings. The arbitration clause in the parties's agreement did not allow litigation to proceed while arbitration was ongoing. The district court had not issued a final order, and did not state that his order involved a controlling question of law whose resolution may materially advance completion of the litigation. Accordingly, the subsequent appeal was dismissed for lack of jurisdiction pursuant to 9 U.S.C. §16(b)(2).

Federal court abstains after state court rules arbitration agreement is unenforceable. Preferred Care of Del., Inc. v. VanArsdale, No. 16-5209 (6th Cir. January 13, 2017) (not recommended for publication) involved parallel proceedings in state and federal court. In the state court action, which was filed first, the plaintiff sued Preferred Care for negligence and wrongful death. Preferred Care then filed an action in federal district court seeking an order compelling arbitration and an injunction enjoining the plaintiff from proceeding in state court. Before any federal court ruling, the state court granted summary judgment on the arbitrability issue, holding that the plaintiff had lacked authority to sign an arbitration agreement on his mother's behalf, so the agreement was unenforceable. Citing Colorado River Water Conservation District v. United States, 424 U.S. 820 (1976), and applying the eight-factor test under Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983), the district court decided to abstain in the federal case. The Sixth Circuit affirmed on appeal.


Marnie Huff 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 chairs the membership subcommittee of the ABA Section of Litigation’s ADR Committee. She is a past member of the ABA Section of Dispute Resolution’s Council and 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.

Appendix M from Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money (2d Ed. 2015)

Copyright 2015, Appendix M is reproduced with permission of the author John Lande.

read more »

Online Dispute Resolution and the Legal Profession

Online dispute resolution (ODR) is becoming more widely discussed as the legal world continues to try to understand how it will effect the profession. The Hiil Trend Report on ODR and the Courts: The Promise of 100% Access to Justice? is contributing to that discussion.

This report from the not-for-profit foundation based in The Hague analyzes progress being made on ODR in various locales, discusses best practices from different legal systems and suggests how the implementation of ODR can be useful by parties in the legal profession.

read more »

Interview with Gail Vaughn Ashworth


Memphis attorney Stephen L. Shields of Jackson, Shields, Yeiser & Holt talks with former TBA President Gail Vaughn Ashworth about online dispute resolution and the evolving legal market.


Q.  As you know, the TBA ADR Section is conducting a seminar on online dispute resolution. What is that about?  Before we get to that, tell us something about your background.

A.  Well, as you may know, I am a past resident of the Tennessee Bar Association. Currently, I am a Commissioner on the Tennessee Supreme Court Access To Justice Commission and I act as the Liaison to the Alternative Dispute Resolution Commission.

Q.  A lot of hats – any one of those “commissions” addressing “online dispute resolution”?

A.  Yes, as regards to online dispute resolution, one of my responsibilities as Commissioner on the Access To Justice Commission is to oversee a committee that deals with pro se litigants/pro bono mediations. And, TBA has a three-year long special committee on evolving legal markets (ELM) that impacts this area.

Q.  What is ELM about?

A.  That committee has a number of “blue ribbon” people on it from across the state I am privileged to serve with. There are four areas that we are concentrating on. One of the ELM areas is online dispute resolution (ODR).

Q.  So there is a good deal of discussion about online dispute resolution already?

A.  Well, I think, based upon what I know, we here in Tennessee are just now beginning to really study online dispute resolution.  Obviously, we have online information. For example, we now have online divorce forms.

Q.  Is ODR going on in other areas or in other states and countries?

A.  Interestingly, online “dispute resolution” has been around a long time on eBay.  Their resolution system was designed by a company called Modria. I think if you Google Modria it will have a good deal of information about ODR.  In fact, as my work with ELM, I discovered that Davidson County Property Assessor’s Office has a contract with Modria.  The first level of appeal for a property tax dispute is through a Modria app online for Davidson County.

Q.  Let’s turn to self-represented individuals. They are greatly underserved, aren’t they? How will ODR help them?

A.  From an access to justice perspective, it is really a great way to provide pro se litigants with the opportunity to resolve their dispute, even pre-suit.

Q.  But that means access to the internet!  How is that going to work for a lot of indigents that do not have access?

A.  I am glad you asked that. It is becoming pretty clear that most of this can be done through smart cellphones and self-represented parties can also go to places that have internet access like libraries, community centers, churches, places like that. They can use computers at those locations to go online.

Q.  How is ODR going to help “Access To Justice”?

A.  Let me give you an example.  Take family law. For people in divorce situations, or better, juvenile court for parents who are not married but need a parenting plan or revision of child support, it is just hard to do during weekdays between 8 a.m. and 5 p.m.  They have a job. They have to take off work, get transportation. They do not get paid or risk losing their job because they have to take a day off. Our court system insists that people appear sometime between 8 a.m. and 5 p.m., five days a week.  So, if there was an ODR or online mechanism available to people with real people, like you or me, real mediators available after hours or on weekends and there was no transportation costs, I think that would provide a greater opportunity for individuals to be encouraged to have their dispute resolved; and, to actually reach a resolution.

Q.  What are next steps for your committee?

A.  The ELM special committee is studying and educating lawyers. The committee will generate a report with recommendation about ODR and other areas encompassed in evolving legal markets.  We are also developing a comprehensive survey for Tennessee in this area. 

Q.  How will mediators fit into ODR?

A.  I realize that there is some concern among mediators fearful that they are going to be out of a job.  But, ODR is not a computer doing the mediation. ODR is technology facilitated dispute resolution. Almost all cases will involve a real mediator.

Q.  You mean, sort of like Court of Appeals mediations where you are on the phone and placed on hold, etc.?

A.  That is one way but I think the technology is much more sophisticated to allow “face-to-face”, separate chatrooms, etc. as needed.

Q.  Sounds like there is a lot of work ahead and still a lot of information to gather and evaluate.

A.  Yes. I think the positives of ODR will outweigh the negative, but we have a long way to go here in Tennessee before we see ODR implemented in a lot of different venues.

Thanks.

read more »

Dispute Resolution in a Time of Difficult Conversations

For almost a year, the United States has been subjected to political campaigns that are rife with allegations of bad conduct, of illegal behaviors and disruptive and divisive language — in other words, incivility. Unfortunately, our nation is still under siege on multiple fronts from this same problem. Elected officials are unwilling to meet with constituents because the nature of town hall meetings has at times devolved into shouting matches while the officials simply spout party lines without offering answers to real concerns of the voting public thus creating little opportunity for real dialogue to occur. While we may differ about the means for achieving common goals, without the ability to create spaces for everyone to have a voice, little beyond the current gridlock, dissension and disruptive behavior will occur.

As dispute resolution neutrals, we have the skillset to help our nation move forward. We are uniquely positioned to create the space as well as the opportunity for productive, though difficult, conversations to occur.  When the nation was in the throes of the ‘Black Lives Matter’ protests, the way through for Ferguson and other communities in crisis and fear was to hold conversations among themselves to try to forge a consensus.  There are many dispute resolution neutrals who can create process for people in order for them to at least begin to talk about who we are as a nation, where are we going and what do we want to look like in 5, 10 or 25 years.  Technology and other forces are propelling our nation, our culture, so swiftly towards  the future that if we don’t take the time now, to talk about our common goals and create workable, sustainable solutions we will simply continue to flounder about, shouting slogans at each other and posting memes on Facebook that confirm our own bias.

I would like to point out some of the work done by dispute neutrals that can both inspire and inform us in our search for appropriate process. I want to draw your attention to several of the books published by the ABA called ‘Civic Fusion”, “Structured Negotiation” and “Ferguson Faultlines” for examples of structures and process that has worked in trying to have difficult conversations. I would point to the work of Nancy Rogers, Director Grande Lum and Andrew Thomas at Ohio State University and the creation of the Divided Community Project.  The Project is hosted by the Program on Dispute Resolution at the Moritz College of Law at the University. The Project focuses on how communities can respond constructively to civil unrest as well as how they can identify and address the underlying factors leading to unrest.  Or the work of the National Institute for Civil Discourse, a nonprofit, nonpartisan institute at the University of Arizona dedicated to addressing incivility and political dysfunction by promoting structural and behavioral change.

The fact is that there are many of us striving to find common ground, seeking consensus and looking to each other, regardless of our political persuasion, for answers. We can, we must try to reach beyond our bubbles and find the good in each other.  It is the way forward, it is the only way we will be able to move forward, together.

ACCESS TO JUSTICE AND DISPUTE NEUTRALS

Many, if not all, bar associations have recently developed ‘futures’ reports or reports on the evolving nature of the practice of law. Sometimes, reading through these reports can be disturbing as we contemplate how different practice has become. Yet at the same time, these same reports offer illuminating and fascinating options that are exciting beyond measure to think about how we as neutrals can effect change at so many levels. Every futures report points to dispute resolution process as a key component of our changing system and in particular to providing vital access to those who normally are locked out of an increasingly overwhelmed, difficult to navigate and expensive court system.

In Tennessee, Mediator of the Day programs have sprung up across the state as a way of providing not just access to justice, but relieving some of the pressures on overburdened Court systems and giving mediators a forum to learn and practice their skills in addition to meeting one of their listing requirements. Community Mediation Centers provide not just access to high quality, inexpensive mediators but serve as annex centers for some courts, train mediators and the public and offer low income individuals a real option for resolving their problems.

Outside of Tennessee, we should look at the systems work being done in Utah, in British Columbia, and the extensive court annexed mediation systems of Florida as viable options for a population hungry for methods of resolving their legal problems. Legal Aid Programs in Orange County are working with an online dispute resolution platform developed by British Columbia in Canada to enhance access to dispute resolution for low income persons.

I would be remiss if I didn’t focus on the promise of online dispute resolution as a truly effective and accessible process for resolving some types of disputes. I had the opportunity recently to spend some time with Colin Rule of Modria. Colin gave several of us access to the online platform and it was an incredibly cool and fun experience that offers some viable options for people seeking a relatively quick, inexpensive process to resolve problems. Jeffrey Aresty with Internet Bar is working with legal aid programs across the United States to develop on-line portals for dispute resolution in the family law area.

The work of dispute resolution neutrals and the intersection of the access to justice movement are a fertile ground for developing new and innovative ways to expand the scope and reach of dispute resolution.  We just have to keep our minds open for new opportunities.

read more »

Book Review — Structured Negotiation: A Winning Alternative to Lawsuits By Lainey Feingold


Heidi Plehn Wegryn reviews Structured Negotiation: A Winning Alternative to Lawsuits


Over  the past two decades, Lainey Feingold and Linda Dardarian, both noted and respected California lawyers, have employed “Structured Negotiation” to expand the rights of sight impaired people.  Their work has included assisting these individuals in gaining access to digital content, ATM machines that talk, tactile point of sale devices in grocery stores and talking prescription labels.

Structured Negotiation has an impressive track record boasting over 60 settlement agreements involving some of the largest organizations in the United States. As Feingold says: “Bank of America, Walmart, Charles Schwab, CVS, Major League Baseball, Denny’s, Anthem, Inc, and Weight Watchers are just a few of the private entities that have traded the stress, cost and procedural wrangling of litigation for Structured Negotiation.”

In Feingold’s book Structured Negotiation: A Winning Alternative to Lawsuits, the author walks the reader through the process of Structured Negotiation and explains the collaborative process.  Feingold and Dardarian have used planned early dispute resolution for 20 years to successfully resolve civil claims without filing a lawsuit.  The benefits of Structural Negotiation are significant and I agree with Feingold’s assertion that “many forms of collaboration are taking root as clients and lawyers demand less adversarial ways to resolve claims.”

Alternatives to litigation exist for those who are disenchanted with a limits imposed by the traditional adversarial approach.  Feingold’s book provides an excellent roadmap outlining how the mindful practice of Structured Negotiation can enhance the ability of lawyers to zealously represent clients in a satisfying and successful  alternative to lawsuits.

Feingold defines Structured Negotiation as a process that “avoids complex procedural rules, expensive discovery, battles over experts, and third party decision makers.  The process is “Structured” because it is a method with identifiable components that give shape to a replicable process for resolving legal claims; it is “Negotiation” because the method is collaborative, dependent on trustful give and take, and geared toward a win-win solution.”   She further writes that Structured Negotiation “has its own framework premised on the idea that legal claims can be resolved equitably--and cost effectively--if stakeholders are able to form relationships and communicate openly with each other.”  The author does not entirely dismiss litigation.   As Feingold points out, “litigation plays a crucial role in enforcing rights, and sometimes it is the best or only option.”  However she also emphasizes “when all you have is a hammer, everything you have looks like a nail.  Structured Negotiation offers another set of tools.”

The book outlines the elements and stages of Structural Negotiation serving as a nuts-and-bolts guide for attorneys and advocates in all fields who want an effective new strategy to resolve legal claims that does not include lawsuits. It provides practical guidance for the overall process, and insight into cultivating the Structured Negotiation mindset. The chapters in Feingold’s book describe how to:

  • Prepare a Structured Negotiation Case
  • Write an Invitation to Negotiate in an Opening Letter
  • Establish Ground Rules
  • Share information and Expertise
  • Use Experts in Structured Negotiations
  • Move Negotiations Forward and Overcome Obstacles
  • Handle the Unexpected
  • Draft the Agreement
  • Negotiate about Money
  • Use Post Settlement and Media Strategies
  • Monitor and Enforce Settlements

What resonates for me most in Feingold’s book is her discussion about cultivating the Structured Negotiation mindset and supposition that an attitude of collaboration increases the likelihood that the process will be successful.  Feinberg asserts that this attitude, or Structured Negotiation mindset, is “comprised of elements that make dispute resolution without judges and court rules possible: patience, trust and optimism; confidence and equanimity; appreciation; and just plain being friendly.”

 Feinberg eloquently draws an analogy to Daniel Bowling and David Hoffman’s work on the role of personal qualities from a mediator’s perspective in their book “Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution” whereby lawyers practicing Structured Negotiation also  “bring peace into the room” even though they are not neutrals.  Feingold makes the point that in two decades of avoiding the courthouse she has “learned that bringing peace and being a strong advocate are not mutually exclusive.”

I couldn’t agree more with Feinberg’s closing sentiment:

Let us teach a generation of law students that collaboration does not mean weakness. That “settle” is not synonymous with “settle for less,” and that win-win can mean long-lasting victory for everyone.  Let us teach those students--and those whose student days are far behind them--how patience is an active negotiation strategy and how being kind gets results. Let us offer courses about the danger of negative assumptions and the importance of optimism and confidence.  And as a profession let us expand our vocabulary so we have options besides “defending”, “opposing,” and “demanding.”

read more »

Come to the 2017 Dispute Resolution Forum

Join the Tennessee Bar Association for the 2017 Dispute Resolution Forum April 10 in Nashville. The day will focus on the changing landscape of mediation from live to digital. Speakers will address the implications of online dispute resolution technology and provide practical examples of this new technology in action. Another session will address how online dispute resolution can improve access to justice. Other sessions will cover the ethical issues arising out of online dispute resolution. Find out more and register here.

read more »

TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

read more »

Updates and Resources for ADR Practitioners

by Marnie Huff*

I. Resources

Here is a copy of Appendix N (Checklist for Preparing Clients for First Negotiation Session) from Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money (2d Ed. 2015), reproduced with permission of the author John Lande. Information on Lande’s well-regarded book is available at the ABA Bookstore.

II. Caselaw Update

A. Certiorari Petitions Pending in U.S. Supreme Court

Cases on the SCOTUSblog watch list include the following cases with arbitration issues:

• Epic Systems Corporation v. Jacob Lewis, No. 16-285 (cert petition filed September 2, 2016: “Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”).

• Ernst & Young, LLP, et al. v. Stephen Morris, et al., No. 16-300 (cert petition filed September 8, 2016: issue similar to Epic Systems case).

• Connie Patterson, Individually and on Behalf of All Others Similarly Situated, et al., v. Raymours Furniture Company, Inc., No. 16-388 (cert petition filed on September 22, 2016: “Whether a provision in an employment arbitration agreement that prohibits employees from seeking adjudication of any work-related claim on a class, collective, joint, or representative basis in any forum is invalid and unenforceable under Sections 2 and 3 of the Norris-LaGuardia Act, 29 U.S.C. §§ 102, 103, and Sections 7 and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1), because it ‘interfere[s]’ with the employees' statutory right ‘to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.’”).

• National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (cert petition filed September 9, 2016: issue similar to Patterson case)

• Government of Belize v. Newco Limited, No. 16-135 (cert petition filed on July 26, 2016: “(1) Whether, under the doctrine of forum non conveniens, as applied to a confirmation action to enforce a foreign arbitration award, a foreign forum is per se inadequate because assets in the United States cannot be attached by a foreign court, as the D.C. Circuit has held; or is adequate if it has jurisdiction and there are assets of the defendant in the alternative forum, as the Second Circuit held; and (2) whether, under Article V(2)(b) of the New York Convention, the public policy in favor of arbitration yields where confirmation of an arbitral award would be contrary to the countervailing public policies such as international comity and the policy against tax evasion.”).

• Government of Belize v. BCB Holdings Limited, et al., No. 16-136 (cert petition filed July 26, 2016: statement of issue similar to Newco case).

• Government of Belize v. Belize Social Development Limited, No. 15-830 (cert petition filed December 22, 2015: statement of issue similar to Newco case).

B. Selected Cases from U.S. Court of Appeals for the Sixth Circuit

1. Arbitration

Continuing to work constitutes assent to employee handbook’s arbitration agreement. Marlena Aldrich; Kristin Nolan v. University of Phoenix, Inc., Case No. 16-5276 (6th Cir. October 24, 2016) (not recommended for publication) involved a suit against the University of Phoenix for wrongful termination and for uncompensated overtime hours. For the latter claim, the plaintiffs sought to represent a class of similarly uncompensated employees. After removal to federal court, the district court dismissed the case without prejudice on the ground that the plaintiffs were required to arbitrate their claims, notwithstanding the plaintiffs’ affidavits asserting they never received or signed the university’s online form acknowledging an agreement to arbitrate in the employee handbook. One of the issues on appeal was whether the district court erred in ordering arbitration because there was a genuine dispute of material fact as to whether the plaintiffs signed the acknowledgement form. Under the FAA, if an arbitration agreement’s existence is “in issue,” a court cannot grant a motion to compel arbitration. 9 U.S.C. § 4. Under applicable Kentucky law in this case, an employee who does not sign an arbitration agreement can still demonstrate acceptance of the agreement by continuing to work for an employer. Here, the university’s employee handbook stated that acceptance of the arbitration agreement was a condition of employment. The plaintiffs demonstrated assent to the arbitration agreement by continuing to work at the university, whether or not they signed the acknowledgment form. Access the opinion

Arbitration clause doesn’t survive expiration of contract. In Linglong Americas, Inc., et al. v. Horizon Tire, Case No. 16-3520 (6th Cir. December 1, 2016) (not recommended for full-text publication), the District Court denied Linglong’s motion to compel arbitration of Horizon's claims. Linglong argued that an agreement between the parties mandated arbitration even though the agreement had expired by its terms four years earlier. In 2006, the companies entered into a "Collaboration Agreement," under which Linglong China would produce a line of light-truck tires, for which Horizon would be the sole distributor. The Agreement would "remain valid for five years" if not renewed. It had an arbitration clause providing that, "if no settlement can be reached through negotiations," the parties would arbitrate in China any "disputes or claims arising out of this agreement." The agreement was not renewed, but the companies continued to do business with each other. The Court of Appeals held that the arbitration clause did not survive expiration of the Collaboration Agreement because: 1) the majority of the material facts and occurrences giving rise to the dispute did not occur before the contract expired; 2) the contractual right at issue did not survive the Agreement’s expiration, given that Horizon expressly waived any claim that it had a permanent right of exclusive distributorship under the Agreement. Access the opinion

Milan Express Co., Inc. v. Applied Underwriters Captive Risk Assurance Co., Inc., Case No. 16-5270 (6th Cir. December 2, 2016) (not recommended for full-text publication) involved a contract and tort federal court action in Tennessee based on the parties' diversity of citizenship. In a prior appeal, the Court of Appeals vacated the district court’s order stopping arbitration because, under the parties’ contract, arbitrability was for the arbitrator to decide, not the court. After remand from that earlier appeal, the parties agreed to arbitrate in Tennessee. The arbitration panel decided that the parties’ arbitration clause was not enforceable under governing Nebraska law. Applied Undertwriters then moved the district court to vacate the arbitration award, asserting the arbitrators acted with manifest disregard for the law. It also moved to dismiss the action in federal court. Per the parties' contractual forum-selection clause, the parties had agreed that Nebraska courts had exclusive jurisdiction to enforce any arbitration award and resolve other disputes related to their contract. Enforcing that clause, the district court granted Applied Underwriters’ motion to dismiss for forum non conveniens. Neither party challenged that dismissal order. Rather, Applied Underwriters challenged the district court’s failure to decide the motion to vacate the arbitration award. Applied Underwriters argued the district court's non-ruling on the motion to vacate the award, pending when the case was dismissed was an implied denial of the motion, making it ripe for appeal. The Court of Appeals declined to exercise appellate jurisdiction. The district court properly honored the parties’ agreement to litigate the arbitration award in Nebraska courts. Access the opinion

2. Settlements

Bad faith claim rejected. In Great American Insurance Company v. E.L. Bailey & Company, Inc.; Edward L. Bailey, ___ F.3d ___, No. 15-2149 (6th Cir. November 7, 2016), the State of Michigan contracted with E.L. Bailey & Company, Inc. to construct a prison kitchen. After delays, Bailey and the State sued each other for breach of contract in the Michigan Court of Claims. Bailey had obtained surety bonds from Great American Insurance Company guaranteeing its performance. In exchange, Bailey agreed to assign Great American the right to settle claims related to the construction project if Bailey allegedly breached the construction contract. Exercising this right, Great American negotiated with the State to settle Bailey's claims without Bailey's knowledge. It then sought a declaratory judgment from the district court recognizing its right to settle. The district court granted summary judgment to Great American. On appeal, Bailey argued that Great American settled Bailey's claims against the State in bad faith. Affirming the court below, the Court of Appeals held that Bailey presented insufficient evidence of bad faith. Great American’s failure to inform Bailey until the day before a scheduled ADR proceeding was concerning, but alone did not defeat summary judgment. Bailey also did not establish that Great American failed to adequately investigate Michigan law. Access the opinion.

C. Tennessee Cases

1. Arbitration

Failure to provide services, in context of third party beneficiary claim, means arbitration not a consumer case. Billy Coffey, et al. v. Hamblen County, et al., No. E2016-01116-COA-R3-CV (Tenn. Ct. App. December 28, 2016) was a breach of contract action. On behalf of the decedent, who died as a result of suicide in the county jail, the plaintiffs sought damages from a designated emergency medical services provider, pursuant to a contract between the provider and the county. The EMS provider moved to compel arbitration per the contract’s arbitration clause. The arbitration clause provided for arbitration in accordance with the American Health Lawyers Association ADR Services Rules of Procedure. In consumer cases, the AHLA requires a separate notice about waiver of the right to a jury trial and appeal. The plaintiffs argued that the contract’s arbitration provision was invalid because it did not contain this required notice. Reversing the trial court’s decision denying arbitration, the Court of Appeals remanded for arbitration. After examining the AHLA’s definitions of “Health Care Entity,” “Consumer,” and “Consumer Case,” the Court of Appeals rejected the trial court’s classification of the case as a consumer case because the plaintiffs’ action involved the failure to provide services promised in the service agreement between the EMS provider and the county. The plaintiffs’ claim was dependent on the decedent’s status as a third-party beneficiary to the service agreement. Enforcement of the arbitration clause will result in bifurcated proceedings and possibly inconsistent results, but that possibility does not change the result. The Court of Appeals also rejected the EMS provider’s argument that the arbitrator, not the trial court, had authority to decide whether the arbitration agreement was valid. Access the opinion. Access the concurring and dissenting opinion (disagreeing with majority’s view that case is not a consumer case).

Agreed order setting aside arbitration and setting trial results in waiving prejudice from delay claim. Demquarter Healthcare Investors, L.P. v. OP Chattanooga, LLC, et al., No. E2016-00031-COA-R3-CV (Tenn. Ct. App. December 29, 2016) involved a skilled nursing facility lease. After trial began, the trial court, sua sponte, inquired about a lease provision stating that disputes not resolved within thirty days of notice of the dispute "shall be submitted to arbitration . . . ." The defendants asserted that they had not waived arbitration and orally moved for arbitration, which the trial court granted over the plaintiff’s objections. Two weeks after the trial court ordered arbitration, and before any arbitration took place, the trial court entered an agreed order setting aside its arbitration order and resetting the case for trial. One of the issues on appeal was whether the plaintiff was prejudiced by delay caused by the arbitration order. The Court of Appeals held that the plaintiff had agreed to proceed with the trial per the agreed order setting aside the arbitration order and therefore waived the prejudice issue. Access the opinion.

2. Settlements

Response to settlement offer was an acceptance, not a counteroffer. In Tim Grace v. Jeanna Grace d/b/a Grace Trucking, No. W2016-00650-COA-R3-CV (Tenn. Ct. App. November 29, 2016), Tim Grace filed a breach of contract action against Jeanna Grace. Tim later filed a motion to enforce a settlement agreement. Jeanna conceded that Tim had made an offer, but claimed there was no agreement because her response to the offer was a counteroffer, not an acceptance, and she had then revoked the counteroffer. Affirming the trial court’s decision, the Court of Appeals held that the parties had an enforceable settlement agreement. Jeanna’s response involved accepting the terms of Tim’s offer with an added requirement that the agreed order include language that the case was dismissed with prejudice. This added requirement did not materially alter the terms of Tim’s offer and therefore did not constitute a counteroffer. See Disney v. Henry, 656 S.W. 2d 859 (Tenn. Ct. App. 1983). Access the opinion.

John Christopher Gibbs v. Lisa Stacy Gibbs, No. E2015-01362-COA-R3-CV (Tenn. Ct. App. September 7, 2016) involved a post-divorce civil contempt petition filed by the former wife, asserting that the former husband willfully breached their property settlement agreement that was incorporated into the divorce decree. The husband did not attend the contempt hearing. The trial court found that the husband willfully violated the divorce decree based on the wife’s testimony. The trial court ordered incarceration and $50 per day fine until the husband complied with the divorce decree. The Court of Appeals affirmed, holding that contempt is a proper remedy for breach of a property settlement agreement that was incorporated into the divorce decree. It also held that the evidence did not preponderate against the trial court’s finding that the husband’s failure to comply with the divorce decree was willful. Access the opinion.


* Marnie Huff 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 chairs the membership subcommittee of the ABA Section of Litigation’s ADR Committee. She is a past member of the ABA Section of Dispute Resolution’s Council and 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.

read more »

Meet the 2016-17 TBA Dispute Resolution Section Vice Chair Debra L. Fulton

Education:

B.S. Tennessee Technological University, 1978 J.D. University of Tennessee, 1981

Practice and Background:

Having practiced law for more than 35 years, Debbie is a knowledgeable, hands-on professional for whom direct client involvement is essential. Her passion, knowledge, and extensive experience aid in giving her the ability to quickly assess her clients’ needs and offer them sound, practical advice while aggressively defending them and their interests.

read more »

Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

read more »

Tennessee Supreme Court Hires New Program Manager

Patricia Mills began working at the Administrative Office of the Courts as the Tennessee Supreme Court Access to Justice Commission's Pro Bono Coordinator in April 2016 and moved into the Programs Manager role on Dec. 1.

Her undergraduate work at Southern Methodist University was in psychology and statistics, and she served as a member of the Honor Council for four years. Patricia is a native Memphian and a graduate of the Cecil C. Humphreys School of Law at the University of Memphis. During law school, she worked in the Shelby County Juvenile Court Office of the Advocate for Non-Custodial Parents – which was funded with Access and Visitation grant funds from the AOC, participated in the Elder Law Clinic, and was a member of the Moot Court Board.

She has been a licensed attorney in Tennessee since 2012.

read more »

Reflecting on the Responsibilities, Challenges of Your Tennessee Supreme Court ADR Commission

In 1992, the Tennessee Supreme Court entered an order establishing the Commission on Dispute Resolution. The Commission, made up of judges and attorneys, was charged with reporting to the Court the potential benefits of various case management and alternative dispute resolution techniques; any recommendations the Commission deemed appropriate for adopting particular case management or dispute resolution techniques, any recommendations the Commission deemed appropriate for changes in procedural rules or legislation, and any recommendations the Commission deemed appropriate on the improvement of the administration of justice in Tennessee.

In 1994 the Dispute Resolution Commission published its report to the Supreme Court. The Commission’s report focused on the use of mediation and arbitration to resolve civil disputes, noting the use of mediation to reduce litigation expenses and the use of ADR to bring dispute resolution to low income families. On Dec. 18, 1995, the Tennessee Supreme Court entered an order establishing Rule 31 governing the use of ADR proceedings when ordered by state courts and established the Alternative Dispute Resolution Commission (ADRC).

The initial rule adopted most of the Commission’s recommendations regarding ADR with little modification. The 1995 version of Rule 31 had 12 sections. Substantive amendments to the rule were made in 2001 and 2007, with other minor amendments approved in 2009, 2011, 2012, and 2013. The current rule contains 24 sections and two appendices, one for ethical conduct of neutrals and the other for forms.

Since 1995, the ADRC had worked steadily at fulfilling its responsibilities per section 19 of the Rule to:

  • Review and revise, if appropriate, the standards for listing Rule 31 Mediators;
  • Determine the procedure for listing Rule 31 Mediators;
  • Prepare and disseminate appropriate publications containing details regarding Rule 31 ADR Proceedings;
  • Review and revise, as and when appropriate, the standards of professional conduct that shall be required of Rule 31 Neutrals;
  • Review the content of training programs to determine whether they meet the standards for qualification under Rule 31;
  • Assure that all listed Rule 31 Mediators have participated in approved training, have complied with qualification requirements, and have certified their agreement to follow the guidelines and applicable standards and their understanding of the sanctions for failure to comply;
  • Review and, where appropriate, approve applications for listing of Rule 31 Mediators; Evaluate the success of Rule 31 ADR proceedings based on participant satisfaction, quality of results, and effect on case management;
  • Evaluate and review each listed Rule 31 Mediator for continued compliance.

To this end, the ADRC has  formed several committees and a subcommittee to review and discuss the responsibilities of the Commission.

The Commission is presently reviewing Rule 31 in its entirety to determine the need for modifications. Each Committee has been assigned sections of the Rule to discuss and suggest modifications, if needed.  The committees and the sections of the Rule they are reviewing include:

Committee and Sections

Training/Education — Sections 17 (c), 18 (a)

Ethics Advisory — Sections 9, 11, Appendix A

Credentials — Sections 14, 15, 16, 17 (a), (b), (d) through (i), 18 (b) through (d) and (f)

Communications — Sections 5, 18 (e)

Rule and Policy Review — All remaining Sections and Appendices

Pro Bono Advisory — Pro bono Section

To obtain the input of listed Rule 31 mediators in this review process and to best fulfill its responsibilities per Rule 31, the ADRC and in particular the Communications Committee, created and sent out a comprehensive survey to determine needs of Rule 31 listed mediators and asked how the ADRC can best address those needs. Several emails have also been sent to all active Rule 31 listed mediators asking for any thoughts they may have regarding modification of the Rule. Some of the needs and suggestions we have received to date include:

RULE 31 suggested changes:

  • Additional language encouraging practice and use of mediation in the courts
  • Increasing/decreasing mediator continuing education requirements
  • Increasing/decreasing pro bono requirements as well as providing more pro bono opportunities
  • Determining whether Rule 31 filing report process is adequate and/or necessary
  • Expansion of ADR processes

Needs and suggested assistance from ADRC:

  • Affordable advanced mediation education across the State and available on line
  • Assistance on getting a mediation practice started
  • Encouraging the use of "non-attorney" mediators in the legal system and discouraging perceived professional bias
  • Expansion of mediation uses in conflict resolution
  • Provide pro bono and mediation opportunities
  • Use of internet for communication purposes
  • Data sharing base education

The ADRC has reviewed and discussed and will continue to review and discuss the survey results. The ADRC will endeavor to continue to provide its annual continuing mediation education conference each fall at a nominal cost so all Rule 31 listed mediators can attend and receive their required 6 hours of CME every two years. The program has expanded to not only be available to those that can/want to travel to the central part of the state, but it is also available to be viewed live and on-line so that mediators can obtain their CME hours without having to travel and incur those expenses. The 2016 Advanced Mediation Techniques Workshop specifically addressed how to start and market a mediation practice.

The Commission is collaborating with the Access to Justice Commission to study expansion of mediation uses and pro bono and mediation opportunities – in particular looking at mediating medical/hospital bills with the health provider community. Another exciting project has been the development by the AOC of an online Rule 31 application process. Once this is completed (the goal is to have it up and running before the April 2017 Commission meeting) the AOC will work on the development of an online renewal process.

Challenges the ADRC continues to face include the adapting to the rapid advancement of technology – as we know technology touches almost all we do every day. Should there be online Rule 31 initial training and if so, what parts, or should all parts, be approved for online training? Is practicing mediation skills via video conferencing appropriate?

Other issues include whether there should be background checks for all that apply to be mediators since mediators may be considered as officers of the court (a neighboring state requires this). Should mediator privilege be expanded, modified, clarified – should this be by Rule or statute? Should mediators be scriveners of agreements and if so, how should this be done so as to fall within ethical boundaries? Should the confidentiality provisions of the Rule be modified – should confidentiality be addressed by Rule and/or statute? Should pro bono be aspirational or required? Should pro bono mediations be accepted as CME hours, and if so, why and how many hours should be required? Is six hours of CME every two years adequate? These are just a few of the challenges the Commission faces while fulfilling its responsibilities per the Rule.

Your ADRC members are dedicated to continuing Tennessee’s leadership in mediation and alternative dispute resolution and, like the 1992 Commission on Dispute Resolution, dedicated to the improvement of the administration of justice in Tennessee. The Alternative Dispute Resolution Commission members are available at any time to discuss your thoughts on the same. We look forward to hearing from you and thank you for all your service to your fellow Tennesseans.


— Ed Silva is Chair of the ADR Commission. He prepared this report with assistance from Mary Rose Zingale, Court Services Director for the Administrative Office of the Courts.

read more »

States Continue to Adopt 'Uniform Collaborative Law Rules.' Is Tennessee Next?

The TBA House of Delegates and Board of Governors have approved to an effort to establish Tennessee Supreme Court Rules concerning collaborative family law. The proposal tracks the Uniform Collaborative Law Rule drafted by the Uniform Law Commission. A special TBA Joint Subcommittee on Collaborative Law, which includes members from both the Family Law and Dispute Resolution sections, discussed the proposal with the Supreme Court's ADR Commission. After receiving comments from commissioners, revisions to the proposal are in the works. 

As Tennessee continues its efforts, other states are also moving toward adopting the "Uniform Collaborative Law Rules," with the most recent being New Mexico

read more »

Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.
 
How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.
 
If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Tennessee Commission on Continuing Legal Education or access an Affidavit of Sole Authorship or an Affidavit of Joint Authorship from the Commission's website.

read more »

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.

read more »

Letter from the Chair

Friends and Colleagues,

One of the Crown Jewels of Tennessee has always been the beautiful city and fantastic folks of Gatlinburg and Sevier County. With the devastating fires that raged through that area this past week comes much despair and need.  As members of the TBA we are uniquely positioned to help through activation of and participation in the Disaster Legal Assistance program. Please consider donating your time and talents to our brothers and sisters in need. The item below had detailed information on some of the ways you can help.

— Linda Warren Seely

read more »

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.

read more »

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

read more »

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.

read more »