Mediation On-Line A Newsletter from ADR Resources http://adrr.com/adr9/025.htm Volume 3, No. 2, November-December 1999 From: Ethesis@AOL.Com (Ethesis) To: SMarsh@adrr.com Subscribe

Greetings:

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 http://adrr.com/arb01/index.html.  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 http://adrr.com/adr0/links1.htm#SMALL and value referrals and suggestions about good sites.  I've had a real boom in sites this past month or so.

• The OAMA Conference (one I've attended and like) will be in Tulsa, Oklahoma this year.  Ray Hickman will be among the presenters and their web site has information at http://www.OAMA.org/.  OAMA is notable as a group that has made attorney-mediators and professional-mediators both fit in well and easily.  Recommended, especially if you are a non-attorney mediator wondering if mediation is for attorneys only.
• http://ahpweb.org/cbi/home.html is the web page for two conferences and an humanitarian effort.  The conferences are (1) the 8th ANNUAL INTERNATIONAL CONFERENCE ON CONFLICT RESOLUTION (ICR) held May 11-21, 2000 in St. Petersburg, Russia.and (2) WOMEN AT THE EDGE: The Practice of Leadership held May 18 & 19, 2000 in St. Petersburg, Russia.  The humanitarian effort is the BALKAN RECOVERY PROJECT: Catastrophic Trauma Recovery Training (CTR).
• The extremely useful newsletter put out by Willamette's ADR Program is available on-line at http://www.willamette.edu/law/wlo/dis-res/ under "DR Newsletter."  Worth a visit.  If you are near-by, the campus is also worth a visit, located in a place similar to the garden of eden.
• The first heavily commercialized training oriented program in England has a web site at http://www.balm.org.uk/. Anticipate a flood of mediators with their credentials from LawWise.  This is a definite sign that the UK mediation market is maturing.  I am curious to see if they will assume any more responsibility for employment opportunities than the programs in the United States have assumed.  I guess I always expect more from the British, and I hope they take the entire process to a higher and better level.  Their intake secretaries course is a first (as far as I know) and a hopeful sign.
• http://www.compujustice.com is the url for an interdisciplinary group of folks who do mediation and arbitration. CompuJustice is a new company started through a Virginia Beach [VA] law firm, Huff, Poole and Mahoney.  Well worth a visit to see how they have set up their service.  Nicely done and definitely recommended if you are considering a web site.
• For a list of U.S. Federal Government ADR Sites visit http://adrr.com/adr0/index-8.htm Medation Links: Federal.
• http://www.resolutionremedies.com is the web site for a Northern Bay area mediation firm mostly focused on selling the services of retired judges.  (Kind of a mini-JAMS).  While all the advertised panel member profiles were male, it is run by Diane Levinson-Fass, Founder, President and CEO of the ADR firm. A native of San Francisco and resident of Marin County, she was Regional Vice President of JAMS in 1988 and for Endispute in 1991.  In 1994 she started her own company.  I should note that I have seen a significant trend of mediation services hiring strong female officers for marketing purposes and I suspect that as in selling pharmasutical products, women sell mediation services better than men.
• Underwood Service Associates is on-line at http://pws.prserv.net/usinet.fhunder.  Professionally designed.
• Equine Dispute Resolution at www.equinedispute.org has a great site.  I liked it, my daughter loved it, especially their links section.  This site captures the concept of targeted marketing and clear direction very, very well.
• Divorce with Dignity Mediation Services at http://www.divorcesource.com/NJ/dwd.html has been adding content on their web site.
• mediate.com, perhaps the only on-line community for mediators, has two new intrasite locations as a part of http://www.firstmediation.com:
  • http://www.firstmediation.com/litguide/index.htm
  • http://www.firstmediation.com/desktopguide/index.htm
    As always, both of these are well worth the visit.  Jeff Krivis makes a first class effort in everything he does.
• Catherine Morris has massively expanded her bibliography of dispute resolution materials and moved it to http://www.peacemakers.ca/bibintro99.html.
• CompuJustice at http://www.compujustice.com is working hard at networking.  E-mail them at cmandigo@hpmlaw.com or call at 757-518-5602 if you want to make a contact in Virginia Beach, Virginia.
• A beginner's site is at http://home.earthlink.net/~madgew/ the home of Media84U.
• Tim Hicks' site, CONNEXUS Conflict Management, is now at http://www.connexus.mediate.com.
• School Mediation Associates, with over fifteen years of experience, is at http://www.schoolmediation.com.  Well worth a visit.

Essay/Comment/Books/Periodicals

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 adrr.com

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
http://adrr.com/adr9/025.htm
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit http://adrr.com/living/ethesis.htm

Back issues at http://adrr.com/adr9/mediation.htm
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Post Script (the "extra" material for the on-line version).

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

Army Materiel Command

Alternative Dispute Resolution (ADR) Program

http://amc.citi.net/amc/command_counsel/

Defense Logistics Agency, ADR Home Page

http://www.dscc.dla.mil/offices/doccr/adr/adr.html

Department of Agriculture, Conflict Prevention and Resolution Center

http://www.usda.gov/cprc/

Department of the Air Force, ADR Home Page

http://www.adr.af.mil./

Department of Commerce, NOAA

Western Administrative Support Center

Human Resources Services

http://www.wasc.noaa.gov/wasc/HRD/adr.htm

Department of Energy, Office of Dispute Resolution

http://www.gc.doe.gov/adr/index.html

Department of Health and Human Services, Departmental Appeals Board

http://www.os.dhhs.gov/progorg/dab/

Department of the Interior, Bureau of Land Management

Alternative Dispute Resolution Page

http://www-a.blm.gov/nradr/

Department of the Interior, Bureau of Reclamation

Conflict Management Guidebook

http://www.usbr.gov/hr/conflict/

Department of Justice, Office of Dispute Resolution

http://www.usdoj.gov/odr/

Department of Labor, Alternative Dispute Resolution

http://www.dol.gov/dol/asp/public/programs/adr/main.htm

Department of the Navy, ADR Website

http://www.ogc.secnav.hq.navy.mil/adr/

Department of Veterans Affairs, Dispute Resolution Programs

http://www.va.gov/adr/descript.htm

Equal Employment Opportunity Commission, Mediation

http://www.eeoc.gov/mediate/index.html

Federal Aviation Administration

Alternative Dispute Resolution for Acquisition

http://www.faa.gov/agc/

Federal Energy Regulatory Commission, ADR Page

http://www.ferc.fed.us/ogc/adr/adr.htm

Federal Executive Board, Seattle

Alternative Dispute Resolution Committee

http://www.northwest.gsa.gov/sfeb/sfebadr.htm

Federal Labor Relations Authority, Collaboration and ADR Program

http://www.flra.gov/24.html

General Services Administration, Board of Contract Appeals

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

http://www.erols.com/arbmed/gsbca.htm

Interagency ADR Working Groups http://www.financenet.gov/iadrwg.htm

National Institutes of Health, The Center for Cooperative Resolution

http://www4.od.nih.gov/ccr/

Naval Center for Acquisition Training

http://ncat.nps.navy.mil/

Office of Personnel Management, ADR Resource Guide

http://www.opm.gov/er/adrguide/adrhome.html-ssi

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.

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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]; http://www.paed.uscourts.gov/opinions/99D0774P.HTM

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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]; http://www.paed.uscourts.gov/opinions/99D0782P.HTM

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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]; http://www.ce9.uscourts.gov/web/newopinions.nsf/; f606ac175e010d64882566eb00658118/85f3c6b77c5424fa882567fc00605389?OpenDocument

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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]; http://ls.wustl.edu/cgi-bin/8th_byname.pl?search=sheet+metal&or=0

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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]; http://www.state.il.us/court/1999/2981290.htm

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