You are at: [Mediation Services] [  > Back Issue Index  > Issue 20]  -- [Mediation Books / Search]

Mediation On-Line

A Newsletter from ADR Resources
Volume 2, No. 8,  May 1999
From: Ethesis@AOL.Com (Ethesis)


Stephen R. Marsh Picture


First, in my supplement to the newsletter, I overstated part of Dr. Elgin's experience and understated some.  The supplement at covers all the correct information.

Second, I've updated my FAQ.  It is at  I answer the following questions in the FAQ.

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.  I should note that I'll be reviewing two sites in Illinois next month that I'm very pleased to see on the net.


I've started volunteering at Dispute Mediation Services in Dallas, Texas and am going to start rebuilding my mediation practice in Dallas, now that I've gotten settled in with my new firm.

There will be real news next month.  For my work in progress, visit

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")

[return to mediation newsletter index]

Mediation Bulletin Board Link
Link to Dispute Resolution Related Book Reviews

Copyright 1999 Stephen R. Marsh [home]

Mediation Essays

Mediation Topics

Mediation Centers

Advanced Topics

Bulletin Board

ADR Links

More ADR Links


E-Mail to Author

Author's Home Page

Search the Site

This Website is by Stephen R. Marsh
Contact Information at: