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Mediation On-Line

A Newsletter from ADR Resources
Volume 2, No. 9, June 1999
From: Ethesis@AOL.Com (Ethesis)


Stephen R. Marsh Picture


I've added a "fair use" section to my FAQ -- it explains how to use material on this site if you need it for a presentation, etc.  Basically, I'd like a copy of whatever you do, but I'm willing to share the material without compensation and with my blessing.

I was recently interviewed about the referral to mediation of constitutional issues.  While I have serious questions about stakeholder representation and other issues (imagine referring Roe v.Wade to mediation and then expecting the Court to endorse the solution as the constitutional law of the land) I have seen enough miracles, and the cost is so small, that I think the Court did the right thing by the referral.  Should be interesting to see how that works out.

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 ADA Mediation Standards Work Group has released the Interim ADA Mediation Standards.  Call NAFCM, Thameenah Muhammad at 202-667-9700 for a copy.

If you've been looking for a journal to submit an article to, consider dropping a line to:

Professor David A. Larson, Editor-in-Chief
Director, Dispute Resolution Institute
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104-1284
(651)523-2938 (after 6/15/99)


The recent school shootings draw to mind several thoughts.

First, a number of people have noted that subsequent school shootings seem to be a media transmission issue, much like the suicide clusters were.  There have been the normal calls to abridge the first amendment as much as the second amendment has been abridged.  I find the issues interesting, but do not feel that I have any answers (or I'd be discussing answers rather than issues in this paragraph).  Gun control has had negative success so far (the jurisdictions with the greatest gun control have the worst gun violence, the ones with the least, the leat gun violence).  Outlawing "Saturday Night Specials" now means that gun violence involves high caliber pistols and assault rifles instead of much less lethal weapons.

All in all, I find it as frustrating to consider as many must have felt about Prohibition.  We have so many alcohol related deaths in America, yet we know how successful banning alcohol was.

Second, every school related shooting without casualties misses the headlines.  I remember one I was involved in cleaning up after.  The kids used a shotgun with steel shot.  They could not understand the response -- after all, they had been told over and over again that steel pellets did not have the range of lead pellets.  When they were informed that "shorter" range was lethal to football field lengths and that at the range they were shooting steel shot is used by SWAT teams to kill people on the other side of brick walls, several got very ill.

I've been amazed at the amount of violence (by white honor students with no drug or criminal history in the case I'm discussing) that is related to ignorance.

International Updates

I regret I missed the recent visit from Peru to the Dallas Medation Service.  I was in trial and broke free too late. However, following up on Professor Worthen's work at BYU (and in Peru, Brazil and other South American countries), the new Morris Udall center is preparing for a conference on American Indian Nation-Building.  For more information, contact them at or 520-621-7189.  They also have a listserve.  To join the listserve, contact Alex Conley at or 520-621-7189.

On Employment and Professional Organizations

I am distressed to note the number of people I have met who have left SPIDR.  I don't know if this is a regional or a national phenomena.  Any comments or thoughts would be appreciated.  The SPIDR newsletter that just came out had a full page and a half of job listings, which I'll note here and encourage people to read.

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).

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 June Newsletter, was sent out in the Arpil 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.

Recent Developments in Dispute Resolution 4/20/99 Willamette Law Online - Willamette University College of Law


Arbitration: Discovery Statute Not Applicable To Private International Arbitration
Republic of Kazakhstan v. Bidermann, (5th Cir. 3/17/99)

The Republic of Kazakhstan, engaged in private international arbitration with U.S. corporation Biedermann International, brought action for discovery assistance under 28 U.S.C. 1782. The statute authorizes district courts to aid in discovery efforts of litigants before "foreign and international tribunals. The Fifth Circuit reversed the district court and held that private arbitration was not a "tribunal" as contemplated by 28 U.S.C. 1782.

[Full Decision On Westlaw: 1999 WL 104886]

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Arbitration: Court Refuses to Enforce Lopsided Arbitration Agreement
Hooters of America, Inc. v. Phillips (4th Cir. 4/8/99)

Phillips quit her job at Hooters after reporting to management that the brother of the franchise owner "grabbed and slapped her buttocks". Phillips threatened suit for sexual harassment despite having signed an arbitration clause. The 4th Circuit held that although pre-dispute contracts of Title VII claims are appropriate, it is for the court to decide whether or not a contract to arbitrate exists. The court found that the arbitration agreement and program provided by Hooters was so biased and unfair that it was not enforceable.

[Full Decision On Westlaw: 1999 WL 194438]

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Arbitration: Punitive Damages Award Acceptable in Oregon Arbitration
Russell v. Kerley (Or. App. 4/14/99)

Russell bought a house from Kerley on the condition that Kerley make several repairs. After the sale of the house, Russell discovered that Kerley had done the absolute minimum of repairs to make the house withstand inspection. Russell then filed a demand for arbitration pursuant to the arbitration agreement contained within their contract. The arbitrator awarded Russell compensatory and punitive damages, as well as attorney fees. Kerley filed exceptions to the award, but the trial court ruled in favor of Russell. The Court of Appeals held that since the agreement was silent as to remedies and such damages would have been available at trial, the punitive damages were appropriate. The court also noted that while the Oregon Arbitration statutes are based on New York's Arbitration code, Oregon courts are not bound by New York case law disapproving punitive damages in the arbitration context.

[Full Decision On Westlaw: 1999 WL 213139]

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Arbitration: Award Remanded To Consider Public Fiscal Impact
South Plainfield Board of Education v. South Plainfield Education Association

(N.J. Super. A.D. 4/13/99)

The New Jersey Court remanded an arbitrator's decision for supplemental arbitration to determine the fiscal impact of the decision. The defendant, South Plainfield Education Association, originally filed a complaint on behalf of "all affected teachers" against the plaintiff, South Plainfield Board of Education (Board) claiming the Board violated initial salary placement provisions. The arbitrator found for the Association and ordered the Board to compensate the teachers retroactively and place them in the appropriate salary bracket for the upcoming year.

The Board moved to vacate the award because the arbitrator had failed to consider the fiscal impact of the decision. The Court noted that public sector arbitration awards are subject to a broader standard of review than private labor arbitration awards. The Court ruled that the arbitrator's decision was too sterile in that it did not consider how the public school would have to cut services to finance the award. In remanding, the Court stated that the arbitrator must balance the "rights of the grievants with the public interest and welfare."

[Full Decision on Westlaw 1999 WL 212013]

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Mediation: Act Bars Enforcement of Handwritten Settlement Agreement
Haghighi v. Russian-American Broadcasting Co. (8th Cir. 4/7/99)

The International Radio Network (IRN) and Russian-American Broadcasting Co. (RABC) mediated a dispute and agreed to be bound by the Minnesota Civil Mediation Act. The Act required a provision in the settlement agreement stating that the agreement was binding. The mediation produced a handwritten settlement agreement that was signed by both parties but did not have the required provision. When IRN sought to enforce the agreement, The 8th Circuit submitted a certified question to the Minnesota Supreme Court on the issue. The state court concluded that the Act's plain language precluded enforcement of the handwritten settlement document.

[Full Decision on Westlaw:1999 WL 187625]

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ADR Article: Dillenz, Iur Oliver. Drafting International Commercial
Arbitration Clauses. 21 Suffolk Transnat'l L. Rev. 221-250 (1998).

In light of Republic of Kazakhstan v. Bidermann, this article might be worth reading .- SP

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

ADR Online: Building a Successful Mediation Practice - Jim Melamed

Article offers practical advice on establishing and marketing a mediation practice.


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ADR Announcement: Model Rules of Professional Conduct Proposed

CPR - Georgetown Commission on Ethics and Standards in ADR released its proposed Model Rules of Professional Conduct for the Lawyer as Third Party Neutral. Any comments are requested by July 15, 1999.


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