By Bruce Buchanan *

Under President Obama’s June 15, 2012 announcement and Homeland Security Secretary Janet Napolitano’s June 15 memorandum (it is not an Executive Order despite Senator Grassley’s mistaken belief), DREAMers will be eligible for Deferred Action and work authorization (EAD), for a period of two years, subject to renewal,and not be subject to deportation during this two-year period. Deferred Action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion but it does not confer lawful status upon an individual. Thus, it is not a path to permanent residence or citizenship but hopefully is a stepping stone to passage of the DREAM Act with more permanent status for DREAMers.

Let’s review the eligibility requirements for an applicant:  

-       Entered before age 16; [i]

-       Is at least 15 years old when filing an application (but not necessary to be 15 years old on June 15, 2012);

-       Under the age of 31 on June 15, 2012;

-       Has been in the U.S. for at least five years before June 15, 2012; [ii]

-       Is currently in school, graduated from high school or received a GED or been honorably discharged from the Coast Guard or Armed Forces;

-       Has never committed a felony, serious misdemeanor or three or more misdemeanors (not committed at the same time on a particular day)or otherwise pose a threat to national security or public safety.

The parents, siblings or spouse of eligible individuals will not receive any benefits from Deferred Action. According to Department of Homeland Security, if an applicant applies for Deferred Action, it will not cause family members to be flagged or investigated by ICE.

What documentation will be needed to demonstrate an individual came to the U.S. before the age of 16, has resided in the U.S. for a least 5 years preceding June 15, 2012, was physically present in the U.S. as of June 15, 2012 and is an eligible age for Deferred Action? The type of documents used to prove one’s 10-year presence for Cancellation of Removal appears to be appropriate. These documents include, but are not limited to: school records (diplomas, transcripts, awards, etc.), financial records, medical records, including birth of child(ren), employment records, tax records, utility bills & military records. It is unclear whether affidavits will be sufficient to establish an individual’s necessary existence in the U.S.

There are a number of unknowns at this time, which include:

1.    What type of form, if any beyond the I-765, will be required for Deferred Action?

2.    What, if any, will be the filing fee?

3.    Will there a fee waiver? (It is most likely a fee waiver will be available.)

4.    What is a “serious misdemeanor”?

5.    Will juvenile convictions count toward determining ineligibility?

6.    Will being enrolled in GED classes count toward being “in school”?

7.    Will recipients of Deferred Action be allowed to travel abroad?

For individuals already in Removal Proceedings or with an Order of Removal/Deportation, there are clear benefits. Specifically, they are as follows:

a.    For individuals currently in removal proceedings, ICE will soon announce the process by which qualified individuals may request a review of their case in order to receive Deferred Action and work authorization;

b.    For individuals who are in removal proceedings and have already been identified as meeting the eligibility criteria as part of ICE’s prosecutorial discretion review, ICE will offer deferred action for a period of two years, subject to renewal;

c.     For individuals subject to a final order of removal, they may request a review of his case and receive deferred action for a period of two years, subject to renewal, if they demonstrate that they meet the eligibility criteria.

No applications for Deferred Action and work authorization are currently being accepted from DREAMers. By August 15,the USCIS, ICE and CBP will announce the process to implement Deferred Action and work authorization for DREAMers.After that, the DREAMers may begin to file their petitions and see an answer to a part of their dreams.

By Siskind Susser P.C.*

By a 5 to 3 majority, with Justice Kagan recusing, the U.S. Supreme Court, in Arizona v. United States, 567 U.S. __ (June 24, 2012), overturned three of the four disputed provisions of the Arizona immigration enforcement law, commonly known as S.B. 1070. The issue was "whether federal law preempts and renders invalid four separate provisions of the state law."  The Court reasserted the federal government's broad powers over the immigration laws, based on the constitutional power to establish a uniform rule of Naturalization and its inherent power as sovereign to control and conduct relations with foreign nations.  The Court also reasserted the United States system of federalism, as well as the principle of federal preemption of state law, based upon the Supremacy Clause.

In 2010, Arizona enacted a statute, S.B. 1070. The United States sued the State of Arizona, seeking to enjoin S.B. 1070 as preempted.  Specifically, these four provisions of the law were at issue: Sections 3, 5(C), 6, and 2(B). The U.S. District Court for the District of Arizona issued a preliminary injunction preventing the four provisions from taking effect, which the Ninth Circuit Court of Appeals affirmed. 

Section 3

Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor.  Specifically, it provides that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code Section 1304(e) or 1306(a)."  This section does not apply to a person who is authorized by the federal government to remain in the U.S.

The Court concluded Section 3 is preempted by federal law and addressed the principle of field preemption in reaching this conclusion.  Field preemption is one means by which federal law can be found to preempt state law, and it provides that "States may not enter, in any respect, an area the Federal Government has reserved for itself."  Such intent to preempt can be inferred from a framework of federal regulation so pervasive that Congress has left no room for state supplementation.

The Court cited Hines v. Davidowitz, 312 U.S. 52 (1941), which held Pennsylvania could not enforce its own alien-registration program.  In Hines, the Court found the federal registration plan to be a "single integrated and all-embracing system," which did not allow state intervention.  While the current federal alien registration system has changed somewhat since the 1940s, the Court determined it is still a "harmonious whole" governing registration and even providing penalties for noncompliance.  Apart from field preemption, the Court noted that the specific conflicts between federal and state penalties for noncompliance "simply underscore the reason for field preemption."

Section 5(C)

Section 5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the state.  Specifically, "[i]t is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

The Court concluded Section 5(C) is preempted, because it conflicts with federal law by "stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Whereas, under De Canas v. Bica, 424 U.S. 351 (1976), states previously had the authority to pass their own laws regulating the employment of unauthorized aliens, this changed with the implementation by Congress of the Immigration Reform and Control Act of 1986 (IRCA).  The Court determined "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment."  IRCA struck this balance due to concerns that criminalizing aliens engaged in unauthorized work would be inconsistent with federal policy due to the possibility of employer exploitation that aliens already face.  The Court concluded that this careful balance would be disrupted by state law implementing criminal penalties on aliens.

Section 6

Section 6 authorizes state officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States."

The Court concluded Section 6 is preempted, because it conflicts with federal law by "stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Congress set up a federal statutory structure to inform when it is appropriate to arrest an alien during the removal process.  Where no federal warrant has been issued, the federal immigration officers have more limited authority.  The Court noted "Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers."

Federal law does allow for limited circumstances in which state officers may perform the functions of an immigration officer.  This includes the 287(g) program, whereby the federal government may grant said authority to specific officers in a formal agreement with state or local government.  However, these limited circumstances provide for the federal government's supervision and discretion.  Thus, the Court propounded, "Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances." 

Section 2(B)

Section 2(B) provides that for any lawful stop, detention, or arrest made by a state officer, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person." This is the so-called “show me your papers” clause of SB 1070.

The Court concluded that it is too soon to enjoin Section 2(B) as preempted by federal law.  As determined by the Court, since Section 2(B) may fairly be construed in such a way as to avoid doubtful constitutional questions, this section has not yet gone into effect, there is a basic uncertainty as to the meaning of this section and the means of enforcement, and it is "inappropriate to assume [Section 2(B)] will be construed in a way that creates a conflict with federal law."

The Court was not persuaded by the federal government's argument that the mandatory nature of the status checks and the possibility of prolonged detention during status verification posed obstacles to Congress's immigration framework.  First, under 8 U.S.C. 1357(g)(10)(A), communication between federal and state officials regarding immigration status is encouraged even in the absence of any formal agreement.  Further, Congress has obligated Immigration and Customs Enforcement (ICE) to respond to any immigration status requests made by state officials.  Congress has placed no limits upon this communication even where a state requires its officers to make contact or where state officers make contact without considering federal enforcement priorities.  Thus, the Court found Congress "leaves room for a policy requiring state officials to contact ICE as a routine matter."

Second, while the Court acknowledged the constitutional concerns raised by detaining individuals solely to verify their immigration status, it noted that Section 2(B) can be read to avoid this concern based on the "reasonable attempt" language.  The Court acknowledged that if Section 2(B) only requires state officers to check immigration status during the course of a lawful detention or after release, "the provision likely would survive preemption--at least absent some showing that it has other consequences that are adverse to federal law and its objectives." Finally, the Court did state that it was not foreclosing other preemption and constitutional challenges to Section 2(B) as interpreted and applied after it goes into effect.

It remains to be seen whether Section 2(B) as implemented will create racial profiling. If so, this section of SB 1070 may not last very long. Time will tell.

_____________

*Siskind Susser P.C. is one of the largest immigration law firms in the North America with offices in Memphis, Nashville and Atlanta and an affiliate office in Toronto. Their website is www.visalaw.com.

By R. Romona Jackson*

Across Tennessee the reports of children and adult victims of sex trafficking is growing.  From Memphis, where children as young as 13 are found to have been forced into prostitution,[i]  to Hamilton County where reportedly more than 100 cases of adult sex-trafficking were reported in a 24 month period,[ii] Tennessee is facing an increase in a crime once thought prevalent only in larger metropolitan cities.   These victims are typically undocumented, Hispanic females who range in age from their mid-teens to early 40s.[iii]   However, runaways who are legally in the country or who are United States citizens also account for a large percentage of victims.  In fact, in February 2012, the Tennessee Bureau of Investigation (TBI) estimated that 1,000 of the 3,051 reported cases of missing girls in Tennessee between the ages of 13 and 17 were being exploited for sex.[iv]

Fighting the Problem in Tennessee

 Although the problem is growing, organizations and agencies across Tennessee are also growing in awareness, understanding, training, and determination to fight back.  Leading the fight is the Tennessee Legislature, which in 2011, commissioned a study into the occurrence of child sex-trafficking in Tennessee.  The report, which can be accessed at www.tbi.gov by searching “Tennessee Human Sex Trafficking Study,” analyzed sex-trafficking across the state and focused on understanding who is being victimized, where victims are from, and how they become victims.[v]  If you have not read the study, please make time to do so.  Not only does it provide insight into the scale of the problem in Tennessee, but it also provides recommendations on what can be done to stop this growing trend of sexual exploitation of minors and adults from the perspective of law enforcement, prosecutors, social service agencies, and advocates. 

One recommendation was stiffer penalties for those who commit sexual exploitation of minors.  In Tennessee, sex-trafficking is a class B felony with a sentence of no less than 8 years and no more than 30 years in prison.[vi]  Getting convictions remains a problem because of the secrecy of circumstances surrounding the crime, the fact that victims are often moved from city to city with little or no chance to establish relationships with people who could assist them; and the victims are many times unwilling to come forward.  For those victims who are undocumented, the fear is even greater.

 Resources for Advocates and Victims

To get a sense of how prevalent the problem is, consider the following statistic: the Department of Justice reports that in the United States, a child is trafficked for the purpose of sexual exploitation, every two minutes.[vii]  In the time it takes you to finish this article, there will be another victim. 

When victims are willing to come forward, there is help for them.  At the federal level, the Trafficking Victims Protection Act of 2000 (TVPA) was established to assist individuals who are victims of severe forms of trafficking.  The TVPA provides a means for these individuals to obtain a T-visa, and other benefits, which can open the door to a new life.  For criminals convicted under the TVPA, the result can be up to 20 years for each victim and the possibility of life in prison.[viii]  Additionally, the TVPA established a U-nonimmigrant visa for victims of criminal activity, who have been helpful to law enforcement in the investigation of that criminal activity.  Yes, the TVPA provides an immigration benefit to victims of sex trafficking, but law enforcement also benefits by obtaining information and evidence that could lead to the apprehension and prosecution of men and women who sexually exploit vulnerable children and adults.

In Tennessee, those who have been sexually exploited, as well as those who advocate for them and seek to assist them, can turn to local organizations such as The Community Coalition against Human Trafficking (www.cchat.org) and others listed in the TBI study to provide support and guidance.  National organizations, such as the Polaris Project (www.polarisproject.org) and ASISTA (www.asistahelp.org) also provide a wealth of resources for attorneys, victims’ rights advocates, non-profits, and law enforcement in supporting victims of sexual assault and domestic violence. 

Across the state, organizations are partnering to fully integrate efforts to raise awareness and provide victim assistance where it is needed most.  The TBI study previously referenced, highlighted counties with significant reports of sexual exploitation of minors and adults.  At the time of the TBI report, there were 4 counties where more than 100 cases of sex-trafficking of minors had been reported: Shelby, Davidson, Coffee, and Knox.[ix]  There were 8 counties where more than 100 cases of adult sex-trafficking had been reported: Shelby, Madison, Lawrence, Davidson, Coffee, Franklin, Hamilton, and Knox.  Close proximity to an interstate system, airports, and venues for large sporting and entertainment events obviously contribute to the large number of cases in a particular county.  However, it is likely many cases in these and smaller counties often go unreported.

As immigration attorneys, our work and regular interactions with members of immigrant communities provides us with opportunities to identify potential victims of sex-trafficking.  The Polaris Project lists examples of signs we can look for that might indicate someone is a victim of sexual exploitation.  For instance, pay particular attention to young girls or boys who are  under the age of 18 who appear malnourished, show signs of physical abuse or restraint, are not in control of his or her own identification documents or has no identification documents, are not allowed to speak for themselves without a third party being present, have numerous inconsistencies in their story of how they arrived in the United States, have little or no money, and exhibit fearful or anxious behavior when law enforcement is brought up.[x]  If you suspect you know someone who is a victim of sex trafficking or believe that sex-trafficking is occurring in your area, call the national sex-trafficking hotline at 1-855-558-6484. 

I would like to thank the authors for the articles in this issue, Terrence Olsen, Romona Jackson, Siskind Susser, and myself. If you have an article or a suggestion, please e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266. (Note this is a new email address and phone number as I have joined Siskind Susser.) If you would like to contribute, don’t be shy. Send me an email. Writing an article is a great way to contribute to the Bar and for the young attorneys, a great way to get your name out to fellow lawyers.

To all active Rule 31 listed mediators who are also currently licensed and active Tennessee attorneys (per D. Bruce Shine, Chairman of the Tennessee ADR Commission):

•     Recently, the Tennessee Supreme Court signed an Order amending Supreme Court Rule 21, Section 4.07(c). Tennessee attorneys who provide “pro bono mediation services as required by the Tennessee Supreme Court Rule 31 or the Federal Court Mediation Programs established by the United States District Courts in Tennessee” will not be charged the per-hour fee for any Ethics and Professionalism CLE credits earned by providing said pro bono mediation services and imposed by Rule 21, Section 8.03.

•     If you have any questions, please contact Claudia Lewis, Programs Manager at (615) 741-2687 or by email at Claudia.Lewis@tncourts.gov.

By Robert L. Arrington

rarrington@wilsonworley.com

In its first decision of 2012 – D.R. Horton, Inc. and Cuda – the National Labor Relations Board held that employers cannot require their employees to waive all their rights to seek judicial or arbitral relief as a class.   At issue in that case was D.R. Horton’s policy that (1) required employees to submit all employment disputes to an arbitrator, and (2) prohibited the arbitrator from granting relief on a class or collective basis.  Because employees were required to arbitrate disputes, and because the arbitrator could not hear class claims, these provisions effectively denied the employees the opportunity to seek relief as a class.

In a thirteen-page decision, the NLRB held that the opportunity to seek relief as a class is a right protected under Section 7 of the NLRA.  It held, therefore, that employers must allow their employees the opportunity to seek relief as a class in some forum, whether it be arbitral or judicial.

To reach this conclusion, the NLRB had to distinguish or otherwise address several authorities, including the Federal Arbitration Act, a 2010 Memorandum from the NLRB’s General Counsel, and the Supreme Court’s 2011 decision in the AT&T Mobility v. Concepcion case (which upheld a waiver of the right to pursue a class action).  Accordingly, the D.R. Horton case has been appealed and could be overturned. (Whether participation in a class or collective lawsuit is the type of “concerted action” protected by the NLRA is certainly open to debate.)

Recently, Board counsel filed a charge of unfair labor practice against 24 Hour Fitness, Inc., a California based company that operates a national chain of fitness centers. Like D.R. Horton, 24-Hour Fitness maintains an employee dispute resolution plan that requires employment claims to be arbitrated on an individual basis and waives class action participation. Unlike D.R. Horton, applicants at 24-Hour Fitness are permitted to opt out of the plan at time of hire. The Board nonetheless contends the plan is coercive and the right to opt out is illusory. The charge has not, as of this writing, been heard by an administrative law judge.

Until the courts have spoken, employers with dispute resolution plans that contain class action waivers must decide on a course of action. Their options appear to be as follows:

1.      Simply delete the class/collective action waiver. This may remove the D.R. Horton problem, but will mean that employees will be able to ask for class relief either in arbitration or court, with the plan being somewhat ambiguous on which they are supposed to do. An agreement to arbitrate is not automatically an agreement to arbitrate class claims. See Stolt-Nielsen, 130 S. Ct. 1758 (2010). This approach could expose the parties to litigation over whether class arbitration is permitted.

2.      Expressly provide for class arbitration in the plan. This also will satisfy the Labor Board, but will increase the employer’s exposure to arbitration costs, discussed below, because, in order to comply with other applicable law, the employer must pay almost all of the costs of arbitration.

3.      Expressly “carve out” an exception to arbitration for participation in class litigation. Again, this will satisfy the D.R. Horton ruling, but will also remove one of the benefits of dispute resolution plans. It also could encourage employees to file bogus class complaints in an effort to avoid arbitration.

4.      Do nothing until the courts have spoken to the issue. This leaves the employer exposed to a potential unfair labor practice charge under Section 8 of the NLRA.

Which option is best for a particular employer will vary from company to company. Most arbitration administrators, such as the American Arbitration Association (AAA), have separate rules and fee schedules for class arbitration. The AAA, for example, charges the employer $900.00 to administer an employment arbitration under an approved plan. If there is a class claim, this jumps to $3,350.00 for filing the claim and administering the case through determination of the arbitrability of the claim. Thereafter, the class action claim administration fees are charged on a sliding scale depending on the size of the claims, capping at $14,000.00 for claims up to $10 million. (For claims of over $10 million, the fees are considerably higher.) For employers with a relatively small number of employees and relatively low risk of a large class, the class arbitration cost exposure may be perfectly acceptable. Larger employers are presented with a more difficult choice.

Submitted by John Blankenship

The Dispute:

There are competing wills in a will contest case.  The first will in 1998 bequeaths one half of the estate to the Testatrix’ surviving siblings and one half to the surviving siblings of her deceased husband.    A 2006 will omits the siblings of husband and instead bequeaths one half of the estate to Testatrix’ surviving siblings and one half to her niece, the daughter of a deceased sister of the Testatrix.   In 2009, the Testatrix prepared and executed a hand written codicil to the first will which appears, imprecisely, to have republished the 1998 will, thus creating the contest between the two wills.   The court orders Rule 31 mediation.  Consider the following:

              1.         The 2006 will was written by a lawyer who is the husband of the niece who stands to inherit one half of the estate.  The niece had been caring for her aunt, the Testatrix, and handling her affairs under a power of attorney that the Testatrix executed in 2005, and she drove her aunt to the husband/lawyer’s office where the 2006 will was executed.   This same lawyer is representing both the Testatrix’ siblings (a brother and sister who are both old and infirm and of questionable competence) and his wife, the niece in the will contest and in the mediation.

2.         The mediator believes the lawyer has multiple conflicts of interest.

3.         Accordingly, what ethical issues, decisions, conduct/protocol questions does the mediator face?

              4.         What provisions of Rule 31 come into play?

              5.         How should the mediator proceed?

Email your answers and comments to whughes@bassberry.com if you would like to have them published.

© Copyright 2012 Tennessee Bar Association

I am genuinely honored to be the Chair of the Tennessee Bar Association’s Alternative Dispute Resolution Section.  I became involved in the Section about four years ago and I must say, through that involvement, I have discovered what many of you may already know: TBA is a vibrant and dynamic forum for networking and professional development that bridges many diverse talents and perspectives. I intend to rely upon those talents and perspectives in the development of programs focusing on the following areas:

·      Skill Development.  I hope to continue promoting programs that develop the skills of mediators and arbitrators. More specifically, for mediators, the skills necessary to overcome obstacles - or avoiding them altogether - in order to help the parties resolve their differences;

·      Cutting Edge Information From Other Disciplines.  I intend to promote an understanding of neuroscience and psychological insights on how the mind works, and hopefully learn about the behaviors that nudge us ever-closer to settlement;

·      Drafting.  Drafting enforceable agreements has become an important skill for lawyers who advise clients regarding alternative dispute resolution.  I hope to have one program focus exclusively on the drafting of enforceable agreements.

·      Readings.  I intend to have our newsletter, among other matters, focus on insightful books about mediation and arbitration and share those books. 

·      Members.  It is also my objective to involve members in more activities and programs than ever before.  Once you become involved in the Section, I believe you will realize the incredible value that this organization has for you.

I want to express my gratitude to the TBA Staff for their talents and commitment to the Section. 

I also want to thank John Blankenship for his great leadership this past year!

Mark C. Travis, Travis ADR Services, LLC*

In 1997, the Industrial and Labor Relations School of Cornell University conducted a comprehensive study of the use of alternative dispute resolution in the Fortune 1000. The results of that study were later published in a book, Emerging Systems for Managing Conflict: Lessons from American Corporations for Managers and Dispute Resolution Professionals.  After the passage of more than 10 years, coupled with the environmental factors of increased litigation, budget crises in the courts, and decisional trends in the courts, a new survey of the Fortune 1000 was conducted in 2010 and 2011. In addition to the Scheinman Institute on Conflict Resolution at Cornell, the survey was co- sponsored by the International Institute for Conflict Prevention and Resolution and the Straus Institute for Dispute Resolution at the Pepperdine Law School.

The objectives of this study were to obtain information regarding mediation, arbitration, and other ADR techniques used by major U.S. corporations; to identify trends comparing results with the results obtained in the 1997 study; to discover emerging policies and practices in the use of ADR by major corporations; and to understand the factors that explain the trends and patterns in the use of ADR.  While the results have not been officially published, the results were presented in a session at the conference of the Dispute Resolution Section of the ABA in April in Washington. The following is a brief summary of that presentation.

Experience with Types of ADR

This component of the study measured the proportion of corporations that used the particular form of ADR at least once in the previous three years.

This component of the study shows that usage of all forms of ADR Process has remained strong. Perhaps the most notable point from this part of the study shows a fairly strong increase in the use of internal dispute resolution mechanisms such as peer review and ombudsmen.

Principal Reasons Companies Use ADR – 2011

Change in Use of Mediation by Type of Dispute

This part of the survey looked at the proportion of corporations that used mediation at least once in each of the following type of dispute in the previous three years:

Change in Use of Arbitration by Type of Dispute

This segment of the study measured the proportion of corporations that used arbitration in the particular type of dispute at least once in the previous three years.

This component of the study is noteworthy in two particular aspects. It is obvious that the use of arbitration in both commercial and employment cases has reduced significantly.  Perhaps the reason (or reasons) can be discerned in the analysis below. Beyond that summary, respondent interviews revealed other explanations for the decline in the use of arbitration, such as the opinion that arbitration has increasingly become similar to litigation, and that external law has made arbitration more complex, costly, and time-consuming.

Principal Reasons Companies Did Not Use Arbitration by Type of Dispute

The initial findings of the study concluded that about 50% of the respondents have adopted ADR as their principal approach to resolving consumer, commercial, and employment disputes. Additionally, while the use of mediation has remained essentially constant over the last 15 years, there is a trend toward the embrace of a wider array of ADR techniques and many corporations seek to resolve disputes at the earliest possible stage such as through fact-finding, ombudsmen, and peer review.

On the other hand, the survey found that a significant proportion of major corporations – possibly 40% - continue to rely on traditional methods of resolving disputes. The survey also notes a substantial and possibly growing divide between companies that rely heavily on ADR and companies that do not.

*Mark C. Travis, J.D., LL.M., is an independent mediator and arbitrator and also serves as the Director of the Tennessee Center for Workforce Relations. A past chair of the Dispute Resolution Section of the Tennessee Bar, he serves on the panels of the American Arbitration Association, the Federal Mediation and Conciliation Service, the National Mediation Board, and the Financial Industry Regulatory Authority. He can be reached at mtravis@travisadr.com.

A book I am sure mediators will find of interest is one recently published by the American Bar Association.  Its title is Stories Mediators Tell.  I guess the title says it all. This is a compilation of mediators’ firsthand accounts of what really happens during a mediation.  It reveals the range of styles and approaches to mediation by a variety of mediators.  Most importantly, it provides insight on how to handle some very challenging situations.  The book will provide insights even to the most experienced mediator on how to move the parties from intractability to resolution.