OCTOBER 2009

Letter from the Editor

Welcome to Dispute Resolutions – the re-activated newsletter of the Dispute Resolution Section of the Tennessee Bar Association! During my tenure as section chair last year, I had been unable to get the newsletter back off the ground. So, due to my own failing in that regard, I offered to serve as editor for the next couple of years.

So, here is the first of this new quarterly newsletter. This edition contains an update from Linda Seely, current section chair, regarding community mediation; a case law update from another past chair, Marnie Huff; and a few articles authored by yours truly. I would gladly welcome contributions from others, especially if someone wanted to author something on mediation ethics. If anyone is interested in contributing, please contact me at (931) 252-9123 or by email at mtravis@adrspecialists.com.

Enjoy…I hope.

Mark Travis

LETTER FROM THE CHAIR
By Linda Seely

This year marks the fourth time the TBA Dispute Resolution Section members will celebrate “Mediation Day” along with others in the ADR community. In 2007, after successfully promoting statewide Mediation Day events in October 2006, the Coalition for Mediation Awareness in Tennessee established the Grayfred Gray Public Service Mediation Award, honoring the considerable contributions of its first recipient, UT Law School Professor Emeritus Grayfred Gray. The third annual Mediation Day, celebrated at Lipscomb University’s Institute for Conflict Management, recognized the contributions of Tennessee Supreme Court Chief Justice Janice Holder. Justice Holder was instrumental in creating the Tennessee ADR Commission and continues in her role as mediation promoter through the Access to Justice Commission’s Pro Bono and Community Mediation Committee.

This year, we will recognize former Circuit Court Judge Marietta Shipley for her role in numerous mediation reform efforts. She retired in September 2006 after 16 years of public service, During the 13 years Judge Shipley handled family cases as part of her caseload,she was a leader in promoting mediation in the court system in Tennessee. While she was judge, she conducted numerous settlement conferences and case management conferences for family cases. She is a founding member of the Tennessee Association of Professional Mediators, serving as President from March 2007-2008. She founded The Mediation Group of Tennessee, LLC, a state-wide network of mediators and arbitrators who will handle all types of ADR cases.

When she graduated from the Nashville School of Law in 1976, Marietta was in the first classgraduating with a significant number of female students. . She changed the culture of the legal field as a founding partner in Tennessee’s first all-women’s law firm, and later as a judge at a time when there were previously only four women judges in the state. She helped introduce mediation to Tennessee after attending a 40 hour mediation
training put on by the ABA at Stanford. At that time, she was one of three or four people in the state who had been exposued to mediation. Thus was born
a new mission for Marietta: bringing the mediation process to Tennessee in order to better serve the public and our system of justice. She has been at the forefront of the mediation movement ever since.

The Coalition for Mediation Awareness is pleased to also recognize Marietta’s recent efforts in two areas: 1) bringing Peer Mediation to a number of school districts in Tennessee; and 2) organizing a Collaborative Law Process training provided in August 2009 at Vanderbilt University’s School of Law. For all of her contributions, the Coalition for Mediation Awareness and mediators across Tennessee salute and congratulate Marietta Shipley.

COMMUNITY MEDIATION ON THE MOVE
By Linda Seely

As with all newborns, growth can be fast and furious or slow and deliberate. Community mediation is no different. The deliberate and strategic growth model will more often serve the interests of long term health better than uncontrolled and haphazard expansion. The National Association of Community Mediation reflects a national membership of individuals and entities engaged in this vital work of community building. Community mediation has a long history in Tennessee and is coming into maturity through the efforts of its many proponents across the state.

In December 2008 a number of community mediation advocates and directors came together from across Tennessee at Lipscomb University to better mobilize and promote this vital dispute resolution tool. Directors from East, Middle and West Tennessee convened and explored funding models and collaborative working relationships at the Mediation Summit hosted by the Institute for Conflict Management (ICM) at Lipscomb.

At the Summit Lorig Charkoudian, Ph.D. Director of Community Mediation Maryland, led the Tennessee directors in an exploration of the growth and wide acceptance of community mediation in Maryland. The Community Mediation Maryland program holds itself accountable to a 10-point model which emphasizes volunteerism, competence and affordability of mediation and problem solving services. Mediation offerings are targeted at the issues common in the community such as neighbor disputes, landlord tenant relations, police/citizen encounters, school and gang violence and similar frictions.

Importantly, the Maryland model justifies its value with a business case that illustrates the economic contribution community mediation makes to the local economy through reduced violence, higher functioning organizations and less expensive dispute resolution. Community Mediation Maryland and the 15 centers established statewide are funded by state and local government as well as foundations, corporations and individual donations given in recognition of the contribution community mediation makes in the state.

Following the ICM Summit, the new and the established Tennessee mediation centers began working collaboratively to create a Tennessee model of community mediation that will service the needs of the state’s citizens even more effectively. Creating partnerships, developing relationships and advancing the value of community mediation centers across the state, these leaders are working hard to eliminate silos and competition between “lighthouses” and generate a network of service delivery that will advance problem solving from border to border.

Keep your eyes on the ground-breaking work being done by these leaders as community mediation comes into its own in Tennessee. When they call, give them your assistance, encouragement and ideas. Most importantly, give them your time as professionals in the mediation community are obliged to provide pro bono support for the growth of our practice and its incorporation in our communities. As community mediation advances, “all boats will rise” on the tide of increased credibility, awareness and acceptance of facilitated consensual problem solving.

“INSULTING” PROPOSALS AND HOW TO DEAL WITH THEM
By Mark C. Travis

In a recent article in the newsletter Alternatives from the International Institute for Conflict Prevention and Resolution, Professor Dwight Golann provided an excellent analysis of why lawyers make “insulting” proposals, and how neutrals can respond to such negotiation tactics. Understanding the basis for extreme proposals is important to determining how a mediator should respond. This article summarizes Golann’s analysis, with some of this writer’s observations as well.

According to Golann, proposals that the opposing party reasonably classifies as “insulting” are generally motivated by one or more of five possible strategies:

• Bargaining tactics. The negotiator wants to communicate he has high expectations for the outcome and/or an excellent alternative to settlement.

• Strong emotions. A party feels the need to vent strong feelings arising from the case or the settlement process.

• Mis-evaluation of the legal issues. Counsel, perhaps unintentionally, poorly evaluates the case from a legal perspective (perhaps based upon a lack of information).

• A poor bargaining decision. A negotiator makes poor assumptions about how the bargaining process works.

• Disagreement within a team. There are disputes within a party’s bargaining team regarding the bargaining proposal.

In order to move the bargaining process forward, a skilled mediator should be prepared to employ a variety of tools when dealing with extreme proposals. Golann offers several alternatives in the article:

• Probe for the reasoning behind the proposal. The mediator should ask counsel to explain the basis or motivation for the proposal. If counsel has not thought through the rationale, such probing may prompt counsel to do so and perhaps adjust the proposal before it is delivered.

• Ask for a prediction of the opponent’s response to the proposal. The mediator may ask the party presenting the proposal, how he thinks the other side will respond, or how he would respond if he were the recipient of the proposal. While it is obviously difficult for advocates to assume a role reversal, this procedure may be effective in moving the parties toward an effective interactive bargaining process.

• Offer negotiation advice. The mediator may attempt to have the party adjust their proposal to a more reasonable one, with the suggestion that there is still ample room for compromise within the party’s bargaining range. If the mediator is successful in having a party adjust their proposal, the mediator may provide some security to that party by advising the other party that the adjustment was due to hard persuasion by the mediator.

• Ask for private information. If the mediator feels that the proposal will be considered unreasonable to the extreme, he may ask that party for private information regarding that party’s bargaining range and desired outcome. Based on that information, the mediator may be able to persuade that party to adjust their demand with an assurance that further moves will still likely allow the party to achieve their bargaining objectives.

• Focus on other information. It may perhaps be obvious, but given that extreme proposals often arise from a variety of reasons as expressed above, the mediator may want to address and possibly disarm some of those motivations that are obstructing the bargaining process.

Golann’s article is an excellent summary of many of the strategies and tactics frequently encountered by mediators when dealing with aggressive advocates. Perhaps more importantly, his article and the above analysis provide a few tools for mediators in knowing how to effectively respond to these often troubling maneuvers.

By Mark C. Travis

It can be said with some certainty that 2009 has been a “Year of Arbitration” at the United States Supreme Court. The Court has issued rulings in three cases and is holding argument on another in October. Although the issues have been different is each case, it is probably fair to say that in each ruling, the Court has come down in support of an expansive approach to arbitration. The following is a summary of those cases.

Court Approves a “Look Through” Approach to Arbitration Jurisdiction.

In March, in a 4-3 decision, the Court ruled that federal district courts are authorized to “look through” to the contents of the underlying claims in arbitration when determining whether they have federal question jurisdiction to hear a motion to compel arbitration under the Federal Arbitration Act (FAA). In Vaden v. Discover Bank, the Court resolved a split between the circuits that favored a “look through” approach, and those that did not, including the 6th Circuit.

In making the ruling, the Court held that Section 4 authorizes a federal district court to entertain a motion to compel arbitration if the court would otherwise have jurisdiction over a suit arising out of controversy between the parties, notwithstanding the arbitration agreement. Further, the controversy between the parties, the Court ruled, refers to the underlying substantive controversy, not the dispute over whether the arbitration agreement is enforceable. In this case, the Court held that the district court would not have had subject matter jurisdiction because the controversy was a debt collection claim, which did not invoke federal jurisdiction.

Arbitration of Discrimination Claim in Collective Bargaining Agreement Effectively Trumps Individual Rights.

In April, another sharply divided Court ruled that provisions of a collective bargaining agreement (CBA) that clearly and unmistakably require union members to arbitrate age discrimination claims are enforceable. In 14 Penn Plaza v. Pyett, Pyett and two other men worked as night watchmen at 14 Penn Plaza. The three individuals also were members of the Service Employees International Union (SEIU) covered by a CBA between the SEIU and the Realty Advisory Board, a multiemployer bargaining association in which 14 Penn Plaza was a member. Under the CBA, union members were required to submit all employment claims — specifically including discrimination claims under the Age Discrimination in Employment Act (ADEA) and other federal and state antidiscrimination statutes — to binding arbitration. The agreement added that arbitration would be the "sole and exclusive remedy for violations" of federal and state antidiscrimination laws. Later, 14 Penn Plaza entered into an agreement with a security contractor to provide licensed security guards for the office building. As a result, Pyett and his co-workers were reassigned to jobs as porters and cleaners.

The SEIU filed grievances on behalf of Pyett and his coworkers. The watchmen then filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). After receiving their right-to-sue letter from the EEOC, they filed a lawsuit against 14 Penn Plaza alleging their reassignment amounted to age discrimination under the ADEA.

The Supreme Court found that the arbitration provision was enforceable. Writing for the majority, Justice Thomas stated that an agreement between an employer and a union to arbitrate discrimination claims is "no different from the many other decisions made by parties in designing grievance machinery" and is a "condition of employment" subject to mandatory arbitration under the National Labor Relations Act (NLRA). Because a union will agree to the inclusion of an arbitration provision in a CBA in exchange for other concessions from the employer, the Court held that courts aren't free to interfere with this bargained-for exchange, and the arbitration provision applicable to age discrimination claims must be honored unless the ADEA itself removes this particular class of grievances from the NLRA. According to Justice Thomas, because "nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative," he concluded that there is no legal basis for failing to enforce a CBA arbitration provision that was freely negotiated by the union and the employer and clearly and unmistakably requires union members to arbitrate their age discrimination claims.

Enforcement of Arbitration Agreement by Nonsignatory.

Then, in May, in the case of Arthur Anderson, LLP v. Carlisle, the Court reversed a decision of the 6th Circuit Court of Appeals. In this case, Carlisle and others had entered into an investment-management agreement with Bricolage Capital, LLC in order to establish a tax shelter. Carlisle also acquired the services of Arthur Andersen LLP, an accounting firm who was not party to the agreement. After the IRS ruled the tax shelter illegal, Carlisle brought suit against Andersen, Bricolage and others. Andersen attempted to enforce arbitration in the case, according to the agreement between Carlisle and Bricolage.

Initially, on procedural grounds, the Court held that Section 16(a)(1)(A) of the FAA clearly allows any litigant who petitions for a stay under Section 3 of the FAA to appeal the denial of the stay. Further, on substantive grounds, the Court held that a nonsignatory to an arbitration agreement may obtain a stay under the Federal Arbitration Act, and could enforce arbitration if state law allowed it. Thus, Anderson was authorized to enforce arbitration in the case.

Looking Ahead – Class Arbitration.

In October, the Court was tphear argument in the case of AnimalFeeds v. Stolt Nielsen, on the issue of class action arbitration under the FAA. In this case, AnimalFeeds filed an action in federal district court alleging that Stolt Nielsen engaged in a global conspiracy to restrain competition in the world market for tanker services in violation of federal antitrust laws, and sought to represent all purchasers of tanker services for chemicals and other liquids. Stolt Nielsen moved to compel arbitration under an arbitration clause in the maritime agreement. Subsequently, the parties agreed to arbitrate the action under the American Arbitration Association Class Arbitration Rules. Rule 3 of those rules requires arbitrators to determine whether the arbitration agreement permits class-wide arbitration. The panel appointed by AAA to make this determination ruled that even though the arbitration agreement was silent on class arbitration, the panel allowed it based on the decision of other AAA panels. Stolt Nielsen petitioned the federal district court to vacate the award based on an allegation that the panel had exhibited “manifest disregard of the law” by failing to apply maritime law to the issue. The district court vacated the award, and the 2nd Circuit reversed, and the case is now before the Supreme Court.

Of course, one could argue that this article would be lacking without reference to various pieces of legislation currently before Congress, which can be referred to collectively, as the Arbitration Fairness Act. However, depending upon which version of this legislation is being considered, it is unlikely that any version would impact the outcome in any of these decisions, with the possible exception of the Pyett case above. Likewise, it is somewhat unclear how Justice Sotomayor may rule in future cases where arbitration issues are present. Nevertheless, for the present, it appears that a judicial predisposition toward arbitration and its trappings are “supremely” in place for the reasonably foreseeable future.

A. MEDIATION

Mediation and res judicata

In Zoran Djordjevic v. Grozdana Djordjevic, No. E2008-01793-COA-R3-CV (Tenn. Ct. App. Aug. 19, 2009), the Court noted, among other things, that a temporary parenting plan pursuant to a mediated agreement is not a final order and therefore not res judicata, distinguishing the case from Hoalcraft v. Smithson, 19 S.W.3d 822 (Tenn. Ct. App. 1999). Opinion at http://www.tba2.org/tba_files/TCA/2009/djordjevicz_081909.pdf

Binding vs. non-binding decision of mediator appointed as “Parenting Arbitrator”

In Elizabeth Sams Tuetken v. Lance Edward Tuetken, No. W2008-00274-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2009), the trial court modified an arbitrator's award in a dispute over the parties' parenting plan and child support obligations. On appeal, the Court rejected the argument that the Uniform Arbitration Act did not permit modification of the decision of the court-appointed “Parenting Arbitrator” (a Rule 31 mediator), appointed by the trial court in an order that stated the arbitrator’s decision “shall be binding on the parties pending the resolution of the matter by the Trial Court.” The Court of Appeals concluded that the Uniform Arbitration Act did not apply. Instead, this was a non- binding dispute resolution proceeding governed by Tennessee Supreme Court Rule 31. The requirements listed in Team Design v. Gottlieb, 104 S.W.3d 512 (Tenn. Ct. App. 2002) for a final and binding ADR proceeding under Rule 31 were not met. Opinion at http://www.tba2.org/tba_files/TCA/2009/tuetkene_080509.pdf

Workers’ Comp mediation; exhaustion of administrative mediation process

As noted in The Holland Group v. Audrey Sotherland, et al., No. M2008-00620-SC-WCM-WC (Tenn. April 24, 2009), parties who have a workers’ comp dispute involving injuries occurring after Jan. 1, 2005 must exhaust an administrative mediation process (the benefit review conference). In this case, the employee has filed a “Request for Assistance” pursuant to Tenn. Comp. R. & Regs. 0800-2-5.01(13), but not a “Request for Benefit Review Conference” pursuant to to Tenn. Comp. R. & Regs. 0800-2-5.01(14). After the Tennessee Dept. of Labor and Workforce Development ordered medical treatment and benefits, the employer filed suit against the employee and the Second Injury Fund, seeking reimbursement for the benefits paid. Because the parties had not exhausted the administrative mediation process, the trial court properly dismissed the suit for lack of jurisdiction. Opinion at http://www.tba2.org/tba_files/TSC_WCP/2009/hollandgroup_042409.pdf

Mediation confidentiality

In State of Tennessee v. William Jeffery Sweet, No. E2008-00100-CCA-R3-CD (Tenn. Crim. App. July 21, 2009), a presentence report on the defendant in a criminal case included a letter prepared during mediation of one of the victim’s civil suits against the defendant. Upon the defendant’s objection, the trial court expunged the letter. On appeal, the Court rejected the defendant’s claim that expungement was insufficient to cure the letter’s prejudicial effect on the defendant. Opinion at http://www.tba2.org/tba_files/TCCA/2009/sweetw_072109.pdf

In Larry Lynn Averitt, Sr. v. Lynn Binkley Averitt, No. M2008-02047-COA-R3-CV - (Tenn. Ct. App. July 24, 2009), the parties signed a handwritten mediated agreement that essentially divided their assets equally, but excluded one of the wife’s retirement benefits from the calculation. On appeal, the Court rejected the wife’s apparent argument that the trial court had erroneously set aside part of the mediation agreement. Without discussing the confidentiality of mediation (there is no indication that any party or the trial court raised the issue), the Court of Appeals addressed the parties’ dispute as to what was communicated during the mediation process. The Court also noted that it applies contract law to determine whether a judgment may be entered in a case based on a mediated agreement. The party seeking to invalidate the contract bears the burden of proving adequate grounds to invalidate. Opinion at http://www.tba2.org/tba_files/TCA/2009/averittl_072409.pdf

In Beth Ann Mason v. Thaddeaus Scott Mason, No. M2007-02059-COA-R3-Cv (Tenn. Ct. App. Mar. 3, 2009), the Court affirmed the trial court’s denial of a Rule 60 motion to alter or amend a final divorce decree, and did not need to reach the issue of whether evidence submitted by the moving party was inadmissible hearsay or inadmissible under Tenn. R. Evid. 408 and Tenn. S. Ct. Rule 31(7) as part of settlement negotiations conducted during a mediation. Opinion at http://www.tba2.org/tba_files/TCA/2009/masonb_030409.pdf

B. ARBITRATION

Hall Street aftermath

In Pugh’s Lawn Landscape Company, Inc. v. Jaycon Development Corporation, No. W2008-01366-COA-R3-CV (Tenn. Ct. App. April 23, 2009), the Court of Appeals considered Hall Street Assocs. LLD v. Mattel, Inc., 128 S.Ct. 1396 (2008), the split of authority in post-Hall Street decisions, and the strong indication in Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445 (Tenn. 1996) that judicial review of arbitration awards is statutorily limited in Tennessee. Based on those considerations, the Court of Appeals held that the Tennessee arbitration statutes, TCA § 29-5-313(a)(1)-(5) and § 29-5-314(a)(1)-(3), do not permit parties in an arbitration to expand the scope of judicial review of an arbitration award. Opinion at http://www.tba2.org/tba_files/TCA/2009/pughlawn_042409.pdf

Legal malpractice suit against attorney representing party in NASD arbitration

In Joseph Barna v. Preston Law Group, P.C. et al., No. M2008-02560-COA-R3-CV (Tenn. Ct. App. Aug. 25, 2009), the Court reversed the summary dismissal of a legal malpractice action against plaintiff’s former attorney who had represented plaintiff in a National Association of Securities Dealers arbitration hearing. Opinion at
http://www.tba2.org/tba_files/TCA/2009/barnaj_082609.pdf

No jurisdiction in Tennessee to enforce arbitration agreement, under unusual facts

In Michael J. Hogan V. Janet Katherine Hogan, No. W2008-01750-COA-RV-CV, (Tenn. Ct. App. Aug. 27, 2009), the parties had divorced in the State of Washington. The parenting plan filed in the Washington court provided that the mother and children would live in California and included an arbitration clause. The parties later agreed that the children would live with the father in Tennessee on a temporary basis. The father sought modification of the parenting plan in a Tennessee court. The Court of Appeals held that under these circumstances: 1) Tennessee courts do not have jurisdiction to enforce the parties' arbitration agreement or to modify the parties' parenting plan under Tennessee’s Uniform Arbitration Act, Tenn. Code Ann. 29-5-301 et. seq., and 2) although the parenting plan provided for arbitration of disputes, placement of that provision in the parenting plan did not result in Tennessee court jurisdiction under Tenn. Code Ann. 36-6-204(3). Opinion at http://www.tba2.org/tba_files/TCA/2009/hoganm_082709.pdf

More nursing home arbitration cases

In Ginger Wise, Individually, and as Next of Kin of Anne Smith, Deceased, v. Heritage Assisted Living d/b/a/ Heritage Home For Seniors, LP, No. E2008-02710-COA-RV-CV (Tenn. Ct. App. Sept. 9, 2009), a nursing home filed a motion to compel arbitration in a wrongful death action. Affirming the trial court’s denial of the motion, the Court of Appeals found that 1) the holder of a power of attorney (POA) was not authorized to sign a nursing home residency agreement containing an arbitration clause: the decedent had not been found incompetent by a physician, as required by the POA, so the POA did not become effective; 2) the holder of the POA did not have express authority under the POA to sign the agreement. The Court declined to determine whether the arbitration clause was unconscionable. Opinion at http://www.tba2.org/tba_files/TCA/2009/wiseg_090909.pdf

In Casey Barclay, as Next of Kin of Odis Doyle Barclay, Jr., Deceased, and on behalf of the Wrongful Death Beneficiaries of Odis Doyle Barclay, Jr. v. Kindred Healthcare Operating, Inc., et al., No. W2008-02828-COA-R3-Cv (Tenn. Ct. App. Aug. 26, 2009), the decedent was competent at the time his nephew signed the optional arbitration agreement. The Court reversed the trial court’s decision that decedent's nephew had express oral authority to bind the decedent to the arbitration agreement, and declined to decide whether the arbitration agreement was unconscionable. Regarding the case’s procedural posture, the Court noted that the correct procedure in a trial court (if a motion to compel arbitration is granted) is to stay the matter pending arbitration pursuant to TCA § 29-5-303(d), not dismiss it. Dismissal of the case, making the trial court judgment a final judgment under TRAP 3, is an “end run” around the statute. When a trial court decides a dispute is subject to arbitration, the “correct procedure to be followed by the trial court is to stay the matter and permit an interlocutory appeal of its judgment on the gateway issue(s) or make its judgment on . . . [those issues] final pursuant to Tennessee Rules of Civil Procedure 54.02.” After a brief discussion of dicta in Green Tree Fin. Corp. - Alabama v. Randolph, 531 U.S. 79, 89 (2000) (if federal trial court had entered stay and not order dismissing case, the order would not be appealable under Federal Arbitration Act), the Court invited the Tennessee Supreme Court and General Assembly to “address the procedural mechanism that best reconciles Tennessee’s statutory provisions, the court’s role as adjudicator of gateway issues, and the Tennessee Rules of Appellate Procedure.” Opinion at http://www.tba2.org/tba_files/TCA/2009/barclayc_082609.pdf

In Corine Broadnax, Individually and as heir and on behalf of the Estate of Mary Alice Johnson v. Quince Nursing and Rehabilitation Center, LLC, et al., No. W2008-02130-COA-RC-CV (Tenn. Ct. App. Aug. 10, 2009), the parties to a nursing home admission agreement disputed enforceability of the agreement’s arbitration provision. The Court reversed the trial court’s grant of summary judgment and remanded for entry of an order compelling arbitration. The Court reasoned that: 1) the trial court erred in applying a subjective “meeting of the minds” standard, rather than the objective “reasonable person” test for mutual assent to the contract; 2) where the arbitration agreement is not a contract of adhesion (here, it was not a precondition to nursing home admission and could be rescinded within 30 days), the nursing home is not required to prove that the parties bargained over its terms, distinguishing this case on its facts from Howell v. NHC Healthcase-Fort Sanders, Inc., 109 S.W.3d 731 (Tenn. Ct. App. 2003); 3) accordingly, the arbitration agreement is enforceable, even if the plaintiff did not read it and even if the nursing home did not explain its terms. Opinion at http://www.tba2.org/tba_files/TCA/2009/broadnaxc_081009.pdf

In Deborah Mitchell, as Executrix of Gaynell Metts, Deceased v. Kindred Healthcare Operating, Inc., et al., No. W2008-01643-COA-R3-CV (Tenn. Ct. App. June 17, 2009), the plaintiff signed an arbitration agreement when her mother was admitted to the nursing home, after the plaintiff told nursing home employees that she had a power of attorney. When the nursing home later sought to enforce the arbitration agreement, the plaintiff claimed she was not actually authorized to act as her mother's attorney-in-fact. On appeal, the Court affirmed the trial court’s refusal to enforce the arbitration agreement because the daughter lacked authority to sign it. The Court rejected the nursing home claims that: 1) the daughter was authorized to sign the arbitration agreement due to a document stating the mother “would like” to make the daughter her power of attorney; or 2) even if the document was ineffective, the daughter had actual authority. The Court declined to consider a new theory of implied actual authority not raised at the trial court level. Opinion at http://www.tba2.org/tba_files/TCA/2009/mitchelld_061709.pdf

In Rheaetta F. Wilson, et al. v. Americare Systems, Inc. et al., No. M2008-00419-COA-R3-CV (Tenn. Ct. App. March 31, 2009), a nursing home filed a motion to arbitrate more than 3 years after plaintiff had filed suit. The Court of Appeals affirmed the trial court’s denial of the motion because the nursing home failed to prove the arbitration agreement was enforceable: the nursing home resident was not incompetent at the time of admission; the resident did not designate anyone as a surrogate to make health care decisions; and no designated physician made any determination of incapacity. The Court also rejected the nursing home’s argument that the daughter had apparent authority. But the Court vacated the trial court’s additional ruling that the nursing home had waived any right to arbitration, given the incomplete record on that issue. Opinion at http://www.tba2.org/tba_files/TCA/2009/wilsonr_040109.pdf

Teacher arbitrations

In Metropolitan Nashville Education Association, et al v. The Metropolitan Board of Public Education, No. M2008-00405-COA-RM-CV (Tenn. Ct. App. March 30, 2009), the Tennessee Supreme Court had remanded the case to the Court of Appeals for reconsideration in light of Lawrence Co. Education Assn. v. Lawrence Co. Bd. of Education, 244 S.W.3d 302 (Tenn. 2007). Rejecting the teacher and MNEA’s attempts to distinguish Lawrence Co., the Court held that, when the arbitrator resolved a dispute over the teacher losing his coaching position, the arbitrator exceeded his authority in this dispute between a math teacher and a board of education. Opinion at http://www.tba2.org/tba_files/TCA/2009/metronashedassoc_033109.pdf

Marnie Huff is past chair of the TBA Dispute Resolution Section and co-chair of the ABA DR Section Ethics Committee. She currently serves as co-chair of the TBA Study Committee on the Arbitration Fairness Act. Her firm, Margaret Huff Mediation, is located in Nashville.

MARKETING YOUR ADR PRACTICE
By Mark C. Travis

The Spring 2009 edition of ACResolution magazine from the Association for Conflict Resolution, was entitled “Marketing Your ADR Practice.” Within that edition were several articles devoted to … you guessed it … marketing your ADR services. As one who recently violated ADR Marketing Rule Number One (“Don’t Quit Your Day Job”), went “totally neutral” and started a web site, I was most interested in devouring this edition for tips and pointers. Most of my interest was directed to the articles that were devoted to utilizing the internet for marketing purposes, although I fully recognize and it’s my feeling that most of our work as ADR professionals comes from word-of-mouth, not an internet search engine.

Much of the information may be too basic for those of you who are more web-savvy than me, and for that, I apologize. While I won’t undertake to summarize all the articles in detail, and since any reader of this newsletter probably prefers the “Readers Digest” version, here are just a few of the marketing strategies and tactics I gleaned from those articles:

Branding. Of course, the concept of branding goes beyond internet marketing alone. The reason I mention it is that if you are going to do any real marketing, experts in the field uniformly require that the person or entity establish a “brand.” This is what differentiates you in the ADR marketplace. A branding strategy should create in the mind of the user a singular image or concept about ADR, and what differentiates you from other providers, either through credentials, expertise, and/or results. Regarding the internet, if you have a brand, your web site should reflect that brand.

Dialogue Marketing. Many ADR professionals (perhaps because of the influence from a former life in the law) tend to use web sites that are static and nothing more than an electronic brochure. This one-way communication represents “monologue marketing,” and the web has moved well beyond that. Progressive marketing on the web is now interactive, incorporating dialogue instead of monologue. Dialogue marketing (e.g. discussion boards, forums, blogs) acts as a learning opportunity where you can learn what potential ADR users want, and builds relationships with those users. Additionally, monologue marketing and static web sites where nothing changes, is less attractive to online search engines. Also, let’s not forget that a real person still (hopefully) provides more dialogue than a web discussion. So, if your web site is going to have a “Contact Us” link, it’s advisable to have a real person at that number. Although you may not be immediately available to return a call, the number should be checked several times a day with at least a brief return call attempted that day.

Social Networking. Although a discussion of social networking sites (e.g. LinkedIn, MySpace, or Facebook) is beyond the scope of this article, one of these articles recommended that if you are going to use one for marketing, know which one your market uses, and focus your time on that one. This article seemed to imply that LinkedIn was more preferred by leaders in the professions today.

Web Site or Web Presence? I noted with particular interest the discussion of “Web Site” versus “Web Presence.” One of the articles pointed out that a web site is just that, your “place” on the internet. A web presence is bigger – it’s your overall profile on the internet, coming from not only your web site, but from association and directory listings, articles you have published, presentations, forum postings, and any site where someone has written about you. A credible web presence is important because prospective users may research your work in the ADR field. This article noted that in order to get a sense of your web presence, you should visit your favorite search engine, perform a search on your name, or if you have one, your business name. Also, you can set up a Google alert for your name and/or business name, or web site address. Google will then notify you by email of any internet traffic which makes reference to your names and web site. Along that same line, it’s a good idea to use a “web analytics” tool to understand what kind of traffic goes to your web site, on what pages they land, how long they stay there, and what they are viewing. This information is generally available for for free from your web hosting provider.

Again, this is just a sampling of some of the marketing tips I picked up from that edition of ACResolution, from the perspective of one who is not terribly web-savvy. I invite you to check it out on your own, if you are an ACR member. As I’m always trying to stay up on these things, I’ll try to bring some more tidbits to future editions of the newsletter.