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Mediation On-Line

A Newsletter from ADR Resources
Volume 2, No. 6,  April 1999
From: Ethesis@AOL.Com (Ethesis)


Stephen R. Marsh Picture


First, a new essay, about mediation in Arizona, has been provided for my site by Gerald Connor who has his web site at  The article is at

Next, I am building an index of information about current graduate programs in ADR.

If you are familiar with a program, I would appreciate the name of the sponsor (e.g. Southern Methodist University or University of Missouri), the type of degree offerred (e.g. certificate, LL.M., Masters, etc.), the number of semester hours the program requires, the tuition price, and contact information.  For my work in progress, look at Your help is invaluable.

Finally, I am working on a longer review of The Mediation Handbook.  While it focuses on resolving conflicts between people who will have to live with each other and who have relationships (vs. the typical "personal injury court annexed mediation" some people now think of as standard) it has a lot to offer, even if you do not accept its initial premises.

I intend a very strong endorsement, while trying to not catch anyone by surprise who is not familiar with the more traditional school of mediation that it represents.  95% of the content applies to any form of mediation, and the price is so conservative compared with many books, that anyone would benefit from owning a copy or two.

Interesting new Mediation & ADR web sites

A reminder.  If you receive this newsletter, and if you have a web site, please send me the url to look at. I'm actively adding personal mediator's sites at and value referrals and suggestions about good sites.


The 1999 Saltspring Session in Mediation has materials for anyone who is interested.  Contact (Jamie Chicanot) for more information.  

On that subject, is a location that is trying to compile a master list of conferences and sessions that are being held.

I will have a supplement to the on-line newsletter in about a week or so that details places to go for free web page hosting and my thoughts on each. will refer you to the supplement.  Check after April 7, 1999.


This question was posted:

> I recently referred a friend to a distance learning program in dispute
> resolution. They offer a graduate degree ... but ... the cost is $45,000.00.
> Given that most full time employment in dispute resolution pays in the
> $20,000.00 to $25,000.00 range, he decided to pass on the program.
> I must admit that I have qualms recommending many graduate programs to people
> as the employment opportunities are drying up in academia (where the pay is
> much higher than in the private sector) and the public sector non-academic
> positions seem to offer less in full-time employment than a starting teacher
> in grade school or a Washington State Highway Patrol position with six weeks
> of training and a high school degree.
> Does anyone here think that there is an ethical obligation to disclose
> employment outlooks as a part of enrolling graduate level students?
> Obviously most of the students at Eastern Mennonite (for example) are well
> aware that the program is preparing quasi-volunteers for a life of service ...
> but ...
> Just a thought.

Answers included:

> I think that there is such an obligation, and that it extends to
> providers of mediation training at the entry level as well.
> Also, it's my recollection that the Federal Trade Commission has sanctioned
> proprietary trade and vocational schools for misrepresenting (and maybe
> not representing) employment prospects for those who take their training.

For a counter-point:

> I think you've focussed on one "position" on the employment issue, rather than the
> interest in learning more. If your concerns are purely economic, you shouldn't be
> advising your potential students to work for someone else anyway. Perhaps those
> seeking a masters degree are looking to prepare them for successful
> entrepreneurial careers.
> I think your desire to share your opinion with potential
> students is similar to a mediator feeling an overwhelming desire to share his/her
> opinion with the folks at the table who never asked for it. Besides, I've seen
> positions on this listserve offered in significantly higher salary ranges
> ($40-65,000) and am aware of at least one very credible graduate program which I
> understand to be in the $20,000 range.

And the final word:

> Thank you for bringing this up. Yes, indeed, I believe that prospective graduate
> students in DR programs should get honest information about their job prospects
> in the field. The ethical issue that you identified is faced also by educators
> in many other fields, e.g., (classical) music performance and many social science
> and humanities disciplines at the doctoral level. A freshly-minted Ph.D. in
> history, for example, offers virtually no job prospects in the U.S. market beyond
> adjunct teaching. That it is a genuine ethical dilemma has been acknowledged by
> academics in these various fields at many universities.

See the excellent article at for more on this endemic problem and how other disciplines are reacting to it and dealing with it. See also

I guess I am meeting too many people who are expecting employment in mediation and not finding it at all.

International Updates

New essays (in Spanish and in both web format and *.rtf) at Doctoral thesis quality (they are a doctoral thesis, in multiple parts, with footnotes in the three figure range).

On Employment

The following is information regarding an ADR position with the Santa Barbara County Courts, in California. Please respond directly to them if you are interested. Please pass this on to anyone in the ADR community who might have an interest.

(Salary Range $45,000 - $55,000 /year depending on qualifications)

Deadline: April 9, 1999

The CADRe Program Coordinator, under direction of the Chairperson of the ADR Programs committee, will manage and assist in the evaluation of the CADRe program and administer and monitor DRPA grant funds.

This is a limited term, extra-help status position, until June 30, 2001, with the potential to become a regular position with benefits thereafter. The position is based in the City of Santa Barbara, but independent travel between Court locations, facilities and work sites will be required up to 2 days per week in Santa Maria, Lompoc, or Solvang. This position is an “at will” Court position, and is not subject to the Santa Barbara County Civil Service system.

Requires: (1) A bachelor's degree in Public or Business Administration, Criminal Justice or a related field, and one year of responsible administrative or supervisory experience in a trial court; or (2) a graduate degree in Court or Judicial Administration, or J.D. degree; or (3) any combination of training, education and experience that would provide the required knowledge and abilities. Active membership with the California Bar is preferred, with experience in dispute resolution systems, program design, and general civil litigation. Training or experience in counseling, project management, and/or administration is preferred.

Applications may be accompanied by a resume, but not in lieu of a completed application form. [Please also attach to or include with your application, a photocopy of any college or university degrees and/or professional licenses or certificates that may be specified above as a requirement for this position, or upon which you intend to rely in qualifying for the position.] Application forms may be obtained from, and completed applications must be filed with: Superior Court Human Resources Figueroa Division 118 E. Figueroa Santa Barbara, CA 93101 (805) 568-2851 to request application. Applications must be received by 5:00 PM on April 9, 1999; not accepted via Fax.

Submissions to

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit

Back issues at

If for some reason you wish to be removed from my periodical mailings please let me know. If I'm sending anyone extra copies or sending it to anyone who shouldn't be getting it, please let me know. This e-mail mailing list is supposed to be limited only people who would be interested and who have subscribed.  Thanks for your patience and help.

Post Script (the "extra" material for the on-line version).


The 1999 Saltspring Session in Mediation. The event will be a series of 2-day courses which can be taken singly or in tandem, covering various themes in the field of mediation. All courses are specifically designed for people who have already completed forty hours of formal mediation training. These 'post-advanced' workshops will be particularly useful and relevant for those people with some degree of practical experience.

We have a full brochure outlining the Summer Session for anyone who is interested. If you wish to include this information in your newsletter, please feel free to do so. If you or anyone you know would like the information please send me your mailing address and I will forward it to you. We are already anticipating considerable demand for these sessions, so extra sections may need to be added.

If I can be of any further assistance please contact me.

Yours truly,

Jamie Chicanot
ADR Education Ltd.

Recent Developments in Dispute Resolution
Willamette Law Online - Willamette University College of Law
Faculty Editor: Ross Runkel -
Student Editor: Kevin Cheatham -
Student Editorial Board: David Ward, Alison Hohengarten, Scott Perry
Web site:

(Past Newsletters: Available Online At The Web site Under "DR Newsletter")

Note, this news, in the summary "extra" portion of my March Newsletter, was sent out in the January Newsletter provided by Willamette and is provided to show you the quality and breadth of the information they provide, by free e-mail newsletter.  If you want the current news and law delivered directly to your desk, this is the place to go.

It may seem silly of me to encourage people to subscribe to a different free service, but I sincerely recommend a subscription to the Williamette newsletter for anyone interested in ADR.

From the January Newsletter:

Arbitration: Choice Of Forum Provision Voided Keystone, Inc. v. Triad Systems Corp. (Mont. 12/30/98)

*Opinion has not been released for publication and is subject to revision or withdrawal.

Keystone, a Montana corporation, purchased a $250,000 computer system from Triad, a California corporation, which allegedly failed to work. Keystone filed a complaint after Triad refused to refund its money and Triad sought to compel arbitration in California pursuant to the contract. Keystone agreed to arbitrate, but only in Montana. The Montana Supreme Court voided the California forum provision in reliance on MCA sections 28-2-708, 27-5-323 which invalidate forum clauses that require Montana residents to seek redress in out of state tribunals. The court reached this conclusion after finding that the Federal Arbitration Act did not preempt Montana law because Congress' objectives were not frustrated as the forum voiding laws apply equally to all contracts and do not nullify the obligation to arbitrate. [Full Decision On Westlaw: 1998 WL 914233]

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Arbitration: Choice Of Arbitration Procedures One Of "Procedural Arbitrability", Subject To Arbitrator's Decision Bell Atlantic Inc. v. Communications Workers of America, AFL-CIO, Local 13000 (3rd Cir. 1/6/99)

Bell and the Communications Workers of America (CWA) entered into a CBA. The CBA outlined two different arbitration procedures, "regular arbitration" and "expedited arbitration". The CBA also outlined which procedure was to be used in certain situations, but left open some types of disputes in which either procedure could be used. Bell wanted to reorganize its administrative units, and the CWA claimed that its reorganization was in violation of the CBA. Bell wanted to use "expedited arbitration" while the CWA wanted the regular procedure. Bell filed for a declaratory judgment to determine which procedure would govern. The District Court ruled in favor of Bell holding that the choice of procedure was "substantive", not "procedural". The Court of Appeals reversed stating that procedural issues are to be decided by the arbitrator, and that the choice of arbitration procedures was a "procedural issue". [Full Decision on Westlaw: 1999 WL 3999]

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Arbitration: Fee-Splitting Clause Voids Individual Arbitration Agreement. Shankle v. B-G Maintenance (10th Cir. 1/05/99)

Shankle sued claiming his discharge violated Title VII, the ADA, and the ADEA. The District Court denied the employer's motion to compel arbitration; the 10th Circuit affirmed.

Shankle was a shift manager for a janitorial company. He signed an arbitration agreement which expressly covered Title VII, ADA, and ADEA claims. The agreement also provided that he would be responsible for half of the arbitrator's fees. After his discharge, the parties submitted the claims to an arbitrator who charged $250 per hour and required the parties to pay a $6,000 deposit. Shankle later canceled the arbitration and filed suit.

The court stated the issue thus: "Is a mandatory arbitration agreement, which is entered into as a condition of continued employment, and which requires an employee to pay a portion of the arbitrator's fees, enforceable under the Federal Arbitration Act?" The court's answer: "No."

The court reasoned that the clause requiring Shankle to pay half of the arbitrator's fees will "actually prevent an individual from effectively vindicating his or her statutory rights." The court estimated Shankle's share of the fee would be between $1,875 and $5,000, which he could not afford. Thus, the employer did not provide an "accessible forum," and that "undermines the remedial and deterrent effect of the federal anti-discrimination laws."

The court rejected the employer's argument that fee-splitting ensures the neutrality of the arbitrator, pointing out that arbitrators can be impartial even if only one party pays, and that they are covered by professional and ethical standards. The court also rejected the employer's invitation to remove the fee-splitting provision and compel arbitration.

[Faculty Editor's Comment: The court clearly stated that the Federal Arbitration Act applied to this case, but did not identify anything in that statute which would support its reasoning. If the reasoning rests on something in the anti-discrimination statutes, the court does not cite to it, but merely recites the basic policies underlying those statutes. The court's primary reliance is on Cole v. Burns International Security (DC Cir 02/11/97), which contains language to the effect that an individual employee cannot be required to pay any portion of the arbitrator's fee

(one judge dissenting on that point), but which actually enforced the arbitration clause after interpreting it to mean that the employer would pay the whole amount.]

[Full Decision Online At:]

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Arbitration: Unfair Labor Practice To Insist On Bargaining Over Interest Arbitration Clause

International Association of Firefighters, Local 1264 v. Municipality of Anchorage (Alaska 1/8/99)

As parties to a series of collective bargaining agreements, the Municipality of Anchorage and the International Association or Firefighters(IAFF) for many years included an interest arbitration clause in their agreements. During contract negotiations in 1991 and 1994, IAFF desired to continue the practice, insisting inclusion of the interests arbitration clause in the agreement, while the Municipality did not. The Municipality filed unfair labor practice charges with the Anchorage Municipal Employee Relations Board, alleging that IAFF's insistence on bargaining over the clause was an unfair labor practice. The board concluded that an interest arbitration clause was a nonmandatory bargaining subject. The board ruled that IAFF had committed an unfair labor practice by insisting on bargaining over the clause, and ordered IAFF to cease and desist demanding inclusion of the clause in the agreement. The Supreme Court affirmed the board's ruling. [Full Decision On Westlaw: 1999 WL 5328]

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _

ADR Online: AAA Creates Federal Center For Dispute Resolution In Washington

"The American Arbitration Association recently announced the creation of its Federal Center for Dispute Resolution in Washington, D.C., a national unit designed to meet the increased alternative dispute resolution needs of the federal government."



Recent Developments in Dispute Resolution
Willamette Law Online - Willamette University College of Law
Faculty Editor: Ross Runkel -
Student Editor: Kevin Cheatham -
Student Editorial Board: David Ward, Alison Hohengarten, Scott Perry
Web site:
(Past Newsletters: Available Online At The Web site Under "DR Newsletter")

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