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Mediation On-Line

A Newsletter from ADR Resources
Volume 3, No. 2, November-December 1999
From: Ethesis@AOL.Com (Ethesis)


Stephen R. Marsh Picture


Well, next semester I am teaching a class on Arbitration for the DR Certificate Program/Masters Degree at SMU (at the SMU@Legacy Campus).  Tuesday nights.  I'm excited to participate.  The class I am teaching I have been asked to make very accessible.  I have also been given the job to provide some reality testing and guidance on employment and placement.  I am taking the assignment very seriously and you can see the rough draft of the syllabus, etc. at  Comments are welcome as the class does not start until January.  I will be adding more class syllabi as the occasion permits.

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've had a real boom in sites this past month or so.


I've been reading "Getting to Peace" and "Repentance."  Ok, Michael Henderson's book is actually titled:  Forgiveness, Breaking the Chain of Hate.  It is a valuable book, well directed at the issues that have arisen in Bosnia, Chechnia, Rwanda, South Africa and in many other places.

On Employment and Professional Organizations

I need to write an essay on the values (and the lack thereof) in creating your own professional organization.  There are many good reasons to participate in an organization and to create one, as well as reasons that many dispute resolution groups become meaningless.  This is an important area of discussion as SPIDR strives to remain relevant and as the ABA dispute resolution section metastasizes.

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).

*****************Federal Government ADR Links***********************

Army Materiel Command

Alternative Dispute Resolution (ADR) Program

Defense Logistics Agency, ADR Home Page

Department of Agriculture, Conflict Prevention and Resolution Center

Department of the Air Force, ADR Home Page

Department of Commerce, NOAA

Western Administrative Support Center

Human Resources Services

Department of Energy, Office of Dispute Resolution

Department of Health and Human Services, Departmental Appeals Board

Department of the Interior, Bureau of Land Management

Alternative Dispute Resolution Page

Department of the Interior, Bureau of Reclamation

Conflict Management Guidebook

Department of Justice, Office of Dispute Resolution

Department of Labor, Alternative Dispute Resolution

Department of the Navy, ADR Website

Department of Veterans Affairs, Dispute Resolution Programs

Equal Employment Opportunity Commission, Mediation

Federal Aviation Administration

Alternative Dispute Resolution for Acquisition

Federal Energy Regulatory Commission, ADR Page

Federal Executive Board, Seattle

Alternative Dispute Resolution Committee

Federal Labor Relations Authority, Collaboration and ADR Program

General Services Administration, Board of Contract Appeals

(site is privately established by Allan Goodman, Board Judge, GSBCA)

Interagency ADR Working Groups

National Institutes of Health, The Center for Cooperative Resolution

Naval Center for Acquisition Training

Office of Personnel Management, ADR Resource Guide

Recent Developments in Dispute Resolution 10/5/1999

Willamette Law Online - Willamette University College of Law

Note, this posting is out of date -- for the current information, visit their website (see the url above) and subscribe to the newsletters.


Arbitration: FAA Not an Independent Source of Subject Matter Jurisdiction
In re: Arbitration Between Gorski Construction Co., Inc., Slip Copy (E.D. Pa. 9/21/99)

After an arbitration board awarded Gorski Construction $470,218.70 for its breach of contract claim, the defendants sought to vacate the award under several grounds outlined in 9 USC 10 of the FAA. Dismissing the defendant's complaint, the District Court noted that the FAA does not create an independent source of federal subject matter jurisdiction under 28 USC 1331. Because the parties were both citizens of Pennsylvania and the defendant failed to raise a federal question, dismissal was proper.

[Full Decision on Westlaw 1999 WL 761133];

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

Arbitration: "Irregular" Award Vacated
Selective Insurance Group, Inc. v. Martin, Slip Copy (E.D. Pa. 9/23/99)

Chester police officer hit the Martin's car, causing them serious physical injury. Arbitration panel found that the underinsured motorist benefits for "governmental " vehicles did not reach vehicles owned by the City of Chester despite knowing of a recent holding by the Pennsylvania Superior court to the contrary. The District Court found the decision "irregular" under the PA Uniform Arbitration Act because it was a "palpable disregard for governing law", and because the award was improperly based on public policy.

[Full Decision on Westlaw 1999 WL 744332];

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

Arbitration: Court Refuses to Enforce Arbitration Agreement in Interdependent Contracts
IKON Office Solutions, Inc. v. Eifert, Slip Copy (Tex.App.-Hous. (14 Dist.) 9/16/99)  Opinion has not been released in the permanent law and is subject to revision or withdrawal.

Eifert sold his business, Global Services, to IKON. As part of the transaction, the parties signed two agreements. The first pertained to employment and outlined Eifert's role with IKON. This agreement contained an arbitration clause. The second agreement concerned acquisition and was silent as to arbitration. Eifert sued IKON for fraudulently inducing him into selling his business at below market rates. IKON filed a motion to compel arbitration. The trial court denied the motion and IKON appealed seeking a writ of mandamus. The court began by noting that the two agreements were interdependent, signed at approximately at the same time and concerned the same transaction. However, the court held that since Eifert had specifically plead a violation of the acquisition agreement and not the employment agreement that the arbitration provision was not applicable. The court refused to extend the arbitration clause to claims not covered by the employment agreement.

[Full Decision on Westlaw: 1999 WL 718237]

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Arbitration: No Agreement to Arbitrate
Laxmi Investments, LLC v. Golf USA , an Oklahoma corporation, ___, F.3d __, (9th Cir. 9/30/1999).

The parties entered into a franchise agreement to operate a golf retail franchise in California. Laxmi purchased a franchise after receiving a Uniform Franchise Operating Circular from Golf USA. The circular stated that Golf USA's franchise agreement "requires binding arbitration and that the arbitration will occur in Oklahoma. This provision may not be enforceable under California law." The contract signed by both parties failed to include the earlier language concerning the enforceability under California law. The 9th Circuit reversed the lower court's decision that the FAA preempted the California Franchise Relations Act (CFRA). The Court held that the parties had not agreed to the forum selection clause because Laxmi relied on the notice given in the circular concerning whether or not the forum selection clause would be enforceable in California.

[Full decision on Westlaw: 1999 WL 770940];; f606ac175e010d64882566eb00658118/85f3c6b77c5424fa882567fc00605389?OpenDocument

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

Arbitration: Arbitration Award Must Bow To NLRB Decision
Sheet Metal Workers International Association v. Murphy Construction Co. (8th Cir. 9/22/1999)

Murphy Construction Company maintains collective bargaining agreements with Local 36 (plaintiff) and Local 562. After Murphy assigned two jobs to Local 562, Local 36 filed a grievance claiming it was entitled to the work. An arbitrator agreed. Local 562 threatened to strike if the work was reassigned to Local 36, and Murphy requested that the National Labor Relations Board to resolve the dispute. The NLRB had not reached a decision when Local 36 brought this action in district court to enforce the arbitrator's award. The district court denied Murphy's motion to stay proceedings until the NLRB made a decision and granted summary judgment for Local 36. Reversing, the 8th Circuit held that courts cannot enforce arbitration awards that conflict with decisions made by the NLRB. Because the NLRB's pending decision addressed the same issue as the arbitration, its determination has priority over the arbitrator's decision

[Full Decision on Westlaw: 1999 WL 742766];

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

Mediation: Mediation Required In Joint Parenting Agreement
In Re Marriage of Duffy (Ill. App. 9/16/1999) Opinion has not been released in the permanent law and is subject to revision or withdrawal.

During the parties' divorce, the trial court modified the dispute resolution provision of the joint parenting agreement. The parenting agreement provided for mediating disputes but also allowed either party to opt out of the mediation provision without cause. The court modified the agreement by ordering the parties to mediate any child custody problems that arise. Petitioner appealed arguing the trial court lacked the authority to modify the joint parenting agreement. Affirming, the Court held that a trial court is authorized to enter a joint parenting order on its own motion if the parties fail to produce one, or it may also modify the parties' proposed joint parenting agreement if it fails to protect the best interests of the children. The trial court did not abuse its discretion by finding that this opt-out provision was not in the best interest of the parties' child. Mediation would preserve the resources of the parties and foster the cooperation necessary for joint custody

[Full Decision on Westlaw 1999 WL 728393];


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