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Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards
April 9, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Understood broadly, these procedures include formal and informal administrative adjudication, as well as arbitration, mediation and other court-connected and agency-connected innovations. In general, reformers conceived these “alternative” processes as means to end legal (or potentially legal) disputes and escape the perceived costs and inadequacies...
April 9, 2013
Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Understood broadly, these procedures include formal and informal administrative adjudication, as well as arbitration, mediation and other court-connected and agency-connected innovations. In general, reformers conceived these “alternative” processes as means to end legal (or potentially legal) disputes and escape the perceived costs and inadequacies...
The Supreme Court and the Future of Arbitration: Preemptive Federal Procedural Paradigm?
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
April 9, 2013
Adopted by Congress in 1925, the Federal Arbitration Act (“FAA”) established a federal “pro-arbitration policy.” That much is beyond debate. It would be difficult indeed to find a judicial decision applying the FAA that did not begin its analysis by reciting the policy’s existence. But courts and scholars have been wrestling for decades over what this federal “proarbitration policy” actually means. Eliminating traditional judicial hostility toward enforcing arbitration agreements?...
Arbitration Clauses Prevent Consumers from Presenting Procedurally Difficult Claims
April 9, 2013
The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated...
April 9, 2013
The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated...
AT&T Mobility and the Future of Small Claims Arbitration
April 9, 2013
Like many other cellular service customers in 2002, Vincent and Liza Concepcion bought what they thought was a free cell phone, but were charged $30.22 in taxes; so they brought a class action against AT&T Mobility LLC (“AT&T”) to recoup those undisclosed fees. Because the Supreme Court upheld the class action waiver in the pre-dispute arbitration clause in the Concepcions’ cell phone contract, if they choose to go forward, they will have to bring their individual claim of $30.22...
April 9, 2013
Like many other cellular service customers in 2002, Vincent and Liza Concepcion bought what they thought was a free cell phone, but were charged $30.22 in taxes; so they brought a class action against AT&T Mobility LLC (“AT&T”) to recoup those undisclosed fees. Because the Supreme Court upheld the class action waiver in the pre-dispute arbitration clause in the Concepcions’ cell phone contract, if they choose to go forward, they will have to bring their individual claim of $30.22...
The Supreme Court and the Future of Arbitration
April 9, 2013
At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration. Here’s a short blurb describing the program. Over the past twenty five years, the range of disputes subject to binding arbitration – particularly as a result of pre-dispute arbitration agreements — has grown dramatically. The U.S. Supreme Court has issued a series of arbitration law decisions on such topics as the availability of class...
April 9, 2013
At the 2012 AALS meetings Ron Aronovsky (Southwestern) organized the ADR Section’s program entitled The Supreme Court and the Future of Arbitration. Here’s a short blurb describing the program. Over the past twenty five years, the range of disputes subject to binding arbitration – particularly as a result of pre-dispute arbitration agreements — has grown dramatically. The U.S. Supreme Court has issued a series of arbitration law decisions on such topics as the availability of class...
Open Law Lab
April 8, 2013
Check Out - Open Law Lab (By Margaret Hagan – Student @ Stanford Law School). This is a welcome addition to the small...
April 8, 2013
Check Out - Open Law Lab (By Margaret Hagan – Student @ Stanford Law School). This is a welcome addition to the small...
Nursing Home Cannot Compel Arbitration Under Agreement Signed By Deceased Resident’s Son
April 8, 2013
The Eighth Circuit made quick work of a nursing home’s argument in favor of compelling arbitration this week. In a suit alleging negligent care of a resident, the court ruled that the arbitration agreement was not enforceable because the resident never signed it. GGNSC Omaha Oak Grove, LLC v. Payich, __ F.3d __, 2013 WL 776811 (8th Cir. March 4, 2013). The fact pattern in this case is probably a common one. When the mother entered the nursing home’s care, she did not sign either the...
April 8, 2013
The Eighth Circuit made quick work of a nursing home’s argument in favor of compelling arbitration this week. In a suit alleging negligent care of a resident, the court ruled that the arbitration agreement was not enforceable because the resident never signed it. GGNSC Omaha Oak Grove, LLC v. Payich, __ F.3d __, 2013 WL 776811 (8th Cir. March 4, 2013). The fact pattern in this case is probably a common one. When the mother entered the nursing home’s care, she did not sign either the...
Parties May Refer to Outcome of Mediation, Not Details of It
April 8, 2013
The Ohio Supreme Court concluded that parties are permitted to refer to the outcome of mediation, including what was not settled, in affidavits and other court filings, as long as they do not disclose details about the mediation itself. State ex rel. Lanham v. DeWine, 2013 Ohio 199 (Ohio, January 29, 2013).
April 8, 2013
The Ohio Supreme Court concluded that parties are permitted to refer to the outcome of mediation, including what was not settled, in affidavits and other court filings, as long as they do not disclose details about the mediation itself. State ex rel. Lanham v. DeWine, 2013 Ohio 199 (Ohio, January 29, 2013).
Claim Files Are Evaluated Using a Form of Root Cause Analysis
April 8, 2013
We have heard the mantra time and time again about how treating the symptom of a problem doesn’t do anything to cure the cause of the problem. As one of my favorite bloggers Seth Godin recently wrote in Signals vs. causes, “A fever might be the symptom of a disease, but artificially lowering the fever (ice bath, anyone?) isn’t going to do anything at all to change the illness.” Assessing a claim file is like doing a Root Cause Analysis. Looking at the damages and paying the claim...
April 8, 2013
We have heard the mantra time and time again about how treating the symptom of a problem doesn’t do anything to cure the cause of the problem. As one of my favorite bloggers Seth Godin recently wrote in Signals vs. causes, “A fever might be the symptom of a disease, but artificially lowering the fever (ice bath, anyone?) isn’t going to do anything at all to change the illness.” Assessing a claim file is like doing a Root Cause Analysis. Looking at the damages and paying the claim...
Pepperdine’s Straus Institute for Dispute Resolution Ranked Number One Again
April 8, 2013
The Straus Institute for Dispute Resolution builds on its 26-year history and continues to top the U.S. News &...
April 8, 2013
The Straus Institute for Dispute Resolution builds on its 26-year history and continues to top the U.S. News &...
