TBA Dispute Resolution Section
November 2002 Newsletter

The Newsletter for Conflict Resolution Neutrals and Attorneys
Published by the Dispute Resolution Section of the Tennessee Bar Association

NOTE: Unless otherwise noted, this Newsletter may be freely redistributed. We request an acknowledgement that "This Newsletter [Article] was previously published in the Dispute Resolution Section's [Month and Year of Publication] Newsletter. Reprinted with permission of the Tennessee Bar Association." Contributions of articles, comments, and suggestions are solicited.

In this issue

Mediating Government Contract Claims: How It Is Different

CPR-Georgetown Commission on Ethics and Standards in ADR

The Child’s Voice

Making A Better Award – An Essential Arbitrator Function

California Judicial Council Protected by 11th Amendment

No Contract Formed, Ergo No Arbitration in "Cookies" Case

Oral Modification of Written Agreement to Arbitrate Not Enforceable

Mediating Government Contract Claims: How It Is Different
Robert J. Gomez, a former ASBCA Judge, has written this article found at 32 Public Contract Law Journal 63-99 (Fall 2002) in which he responds to Professor Steven Schooner’s criticism that the increase in mediation in federal contract disputes has reduced the transparency and accountability for the resulting settlements. [Schooner’s article, Fear of Oversight: The Fundamental Failure of Businesslike Government, is found at 50 Am. U. L. Rev. 627 (2001).] As a solution, he suggests the use of a project facilitator to intervene early to solve issues before they ripen into disputes. If a dispute still occurs, the parties, he says, would be in a more enlightened position to proceed with mediation and document the settlement adequately to pass the taxpayers’ test of transparency and accountability.

He also makes the point that the Government’s necessary pre-occupation with positions limits the parties’ ability to use interest-based bargaining. After a review of the A-12’s thirteen-year history of mediation and court decisions and return to mediation, Gomez inserts another factor – the Justice Department doesn’t agree that the settlement arranged by the parties under which services and supplies will be provided is sufficient in light of the Court of Federal Claims award plus interest.

CPR-Georgetown Commission on Ethics and Standards in ADR
The Commission has issued in November 2002 its Model Rule for the Lawyer as Third-Party Neutral. It is intended to be incorporated into the ABA’s Model Rules for attorneys as Rule 4.5. To get a copy, go to www.cpradr.org. Compare the new Tennessee Rule 2.4, effective March 1, 2003.

The Child’s Voice
Judge Debra H. Lehrmann has written an interesting article, The Child’s Voice, in the November 2002 Texas Bar Journal. It shows how difficult it is to give a child a meaningful voice in custody cases. She shows how recent psychological research has shown that children may be harmed by not having a voice in the process of reorganizing the family. She distinguishes between involvement in the conciliatory phase – such as mediation – and the adversarial phase. The latter, of course, tends to escalate the conflict. Judge Lehrmann also suggests the use of collaborative law as offering a child-centered solution. Collaborative law is now authorized in Texas. She also recognizes that the crucial factor to avoid putting the child in the middle of the adversarial process is parental response.

Making A Better Award – An Essential Arbitrator Function

Richard P. Ryder has written an interesting article on writing awards in securities cases, arguing that they need more content in terms of describing the dispute. It is in the NASD’s October 2002 publication of The Neutral Corner, and is available at: http://www.nasdadr.com/neutral_corner/1002_default.asp

California Judicial Council Protected by 11th Amendment
Carl Ingwalson of San Diego (Phillips, Haskett & Ingwalson) reports that the NYSE and NASD Dispute Resolution, Inc.’s suit against California’s new ethical standards for arbitrators was dismissed by U. S. District Judge Samuel Conti, San Francisco. While disagreeing with the Council’s claim that federal courts lacked jurisdiction over the dispute, he agreed that the 11th Amendment bars federal suits against state agencies and departments, including the judiciary. NASD Dispute Resolution, Inc. v. Judicial Council, CO2-3486 (N. D. Cal. Nov. 12, 2002).

No Contract Formed, Ergo No Arbitration in "Cookies" Case
In Specht v. Netscape, 2002 WL 31166784, an October 1, 2002 decision, the Second Circuit held that no contract was formed when plaintiffs downloaded a software program from Netscape’s web page that enabled Netscape to distribute their personal file names to other users through cookies and to makers of a separate plug-in program. Netscape moved to compel arbitration, but the District Court denied it, and the Court of Appeals ruled that plaintiffs neither received reasonable notice of the terms of the license, nor manifested unambiguous assent, the plug-in wasn’t covered by the terms of the license, and "the legal doctrine that requires nonsignatories to an arbitration agreement to arbitrate when they have received a direct benefit under a contract containing the arbitration agreement does not apply to a website owner who allegedly benefited when users employing the plug-in program downloaded files from the website."
Full text is at: http://www.tourolaw.edu/2ndCircuit/October02/01-78600.html.

Oral Modification of Written Agreement to Arbitrate Not Enforceable
Paul Lurie of Schiff, Hardin gives 2 points to Charlie Rumbaugh of Rolling Hills, CA for finding this case, Magness Petroleum Co. v. Warren Resources of California, Inc., No. B156183 (Cal. 2d App. Dist., Nov. 18, 2002). The parties, partners in a joint venture, required arbitration under AAA auspices. An earlier arbitration was conducted by retired Judge G. Keith Wisot, a JAMS arbitrator, and his recollection and notes indicated that the parties orally agreed to his jurisdiction over all future disputes. Warren filed a second complaint with JAMS, but this was later withdraw without prejudice. Then Magness filed a demand for arbitration with AAA, Warren filed a petition to compel arbitration before Judge Wisot. The trial court ruled for Warren. The appeals court found that the statutory scheme for enforcement of arbitration agreements applies only to written agreements, albeit providing that the term "written agreement" is deemed to include a written agreement that is extended or renewed by oral agreement. Code Civ. Proc., § 1280, subd. (f). For full text of case see:
http://www.courtinfo.ca.gov/opinions/documents/B156183.PDF.

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If you have questions or need information about TBA's Dispute Resolution Section, you may contact: Lynn C. Pointer, Sections/Committees Coordinator, Tennessee Bar Association, 221 Fourth Avenue North. Suite 400, Nashville, TN 37219. Email: lpointer@tnbar.org
Phone: (615) 383-7421 and Fax: (615) 297-8058.