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Dispute Resolution Section
June 2001 Newsletter |
The Newsletter for the Mediating Attorney
LETTER FROM THE EDITOR
This is a voluntary newsletter of a voluntary organization in the Volunteer State. That means that we need you to volunteer to fill it with meaningful, useful, humorous, thoughtful, instructive, etc., information. I’m happy to serve this year as the Editor and even to be a Contributing Editor, but it’s not a one-person job. With the wealth of information available on-line, from CLE/CME courses, and new texts in the field you will have encountered materials that have proven helpful or illuminating in your dispute resolution practice. Is there a book or a chapter or a sentence that is valuable for a practitioner? Do you have any comments on any of the material in this Newsletter? Let me hear from you.
Ken Jackson
Neal & Harwell PLC,
150 Fourth Avenue, North,
Nashville, TN 37219
Tel. 615-244-1713
Fax 615-726-0573
Email: kjackson@nealharwell.com
DR. ROBERT BENJAMIN HEADLINES JULY 6-7 TENNESSEE BAR FIFTH ANNUAL DISPUTE RESOLUTION FORUM
If you’ve read any of the many contributions to the literature by Dr. Benjamin, you’ll want to participate in his seminars scheduled for this Dispute Resolution Forum. A comment from an Ohio attorney-mediator gives you a taste.
"No one is better suited to teach the principles of mediation. Robert Benjamin's background as a practitioner, as an attorney, and as a mental health professional give his presentations great depth. His personality and communication skills make the sessions thought-provoking and are infused with humor and energy."
This is a two-track program on Friday, July 6th covering both civil and family mediation, and an advanced seminar presented by Dr. Benjamin on Saturday, July 7th. Dr. Benjamin will appear on the Friday morning family track, and on the Friday afternoon civil track.
Other presenters include Judge Shipley, Lew Conner, David Taylor, Wearen Hughes, Richard Kessler, Shelby Grubbs, and Ken Jackson.
Contact Mina Kashani at the TBA (mkashani@tnbar.org) 615-383-7421 for further info.
REPORT OF SECTION MEETING AT ANNUAL BAR CONVENTION
On June 7th during the TBA’s annual convention a Section meeting was held with Jan Walden, then Section Chair, Lynn Pointer, TBA Sections Coordinator, and other in-person and conference call attendees. The Section currently has over 100 members, yet only a few attended. We discussed ways and means to facilitate participation in the Section, and ideas for a vision for the future of the Section. Including CLE as part of the interim meetings of the Section was discussed. Some ideas for the next annual Dispute Resolution Forum, e.g., an emphasis on arbitration, were submitted. We’ll learn more about what you are looking for after the upcoming July 6-7 event, but let us know how your leaders can help to make Section membership more valuable for you.
Section Leaders for 2001-2002
David K. Taylor, Nashville, Chair
John Blankenship, Murfreesboro, Secretary-Treasurer
To be advised, East Tennessee Delegate
Judy Johnson, Nashville, Middle Tennessee Delegate
To be advised, West Tennessee Delegate
Jan Walden, Nashville, CLE Chair
Ken Jackson, Nashville, Newsletter Editor
BOARD OF PROFESSIONAL RESPONSIBILITY TO INSTITUTE NEW COMPLAINT INTAKE SYSTEM FEATURING ADR
Following the lead of Georgia and other states, the Tennessee Board of Professional Responsibility is creating a new complaint intake system that aims to assist the consumers of legal services with a two-pronged approach. Inquiries will be received by an intake person who will then decide whether the caller merely needs a referral, e. g., to a fee disputes committee, a lawyer referral service, a Legal Aid Society, pro bono agencies, the Court of the Judiciary, etc. Alternatively, the person may be transferred to BPR disciplinary counsel if the inquiry indicates a violation or is a specific request to file a complaint. For those inquiries that do not rise to the level of a violation for which discipline may be appropriate, and for which the opening of a complaint file is unnecessary, the intake person will attempt to resolve the matter informally with the attorney and the client. For example, if the problem is one of communication or is otherwise readily correctible, the intake person will contact the attorney and attempt to mediate to achieve a resolution.
Other states using this approach have reduced disciplinary caseloads requiring the time and effort of disciplinary counsel and the involved attorney by significant percentages.
Heading up the new office will be Beverly Sharpe, a Knoxville attorney, who has been a solo general civil practitioner engaged in consumer type work. She is a 1983 graduate of the U. T. Law School.
COLLATERAL ESTOPPEL ("ISSUE PRECLUSION") IN ARBITRATION
Recently, I ran across an interesting commentary on the doctrines of res judicata (claims preclusion) and collateral estoppel (issue preclusion) and their application in arbitration. Michael A. Knoerzer’s "Collateral Estoppel and Arbitration" can be found at http://www.insurelegal.com/reinsurance/articles/collateral_estoppel.html (visited 06/22/01). Essentially, Knoerzer finds that the case law requires the arbitrators to decide the collateral estoppel effect of prior arbitration awards or court judgments, and that failure to do so may result in vacatur of the award. He provides guidelines on how to decide the collateral estoppel issue in arbitration.
Knoerzer points out that collateral estoppel only applies against parties who were given a full and fair opportunity to present their case in arbitration. But only the party against whom collateral estoppel is asserted need have been a party in the first arbitration.
Probably the most difficult question is whether the issue to be precluded is identical to the issue previously decided. Knoerzer provides some guidelines from Kamilche Co. v. United States, 53 F. 3d 1062 (9th Cir. 1995), mod. 75 F. 3d 1391 (1996), that make it clear that absolute identify of issues is not required.
THE MEDIATION FIELD GUIDE:
Transcending Litigation And Resolving Conflicts In Your Business Or Organization (2001)
One of my personal favorite writers on mediation is Barbara Ashley Phillips. Her "Finding Common Ground: A Field Guide to Mediation" (Hells Canyon Publishing, Austin, Texas 1994) is off my bookshelf more than on. Jossey-Bass has just published her new book that focuses on personal and business conflict resolution. If you’ve read it, any comments?
