NEWSCASTER
Ohio Mediation Association
PMB OMA
2545 Hilliard-Rome Road
Hilliard OH 43026-9471
A Bi-Monthly Publication July 2002
President: Bridget Durham (614) 645-6624 Fax: (614) 645-8902 E-mail: BDDurham@cmhmetro.net
President Elect: Martha Antolik (937) 264-2336 E-mail: mantolik@coax.net
Vice President: Patti Maiorino (740) 392-9957 Fax: (740) 392-9045 E-mail: maiorino@axom.com
Secretary: Mary McClain ( 513) 684-2321
fax: (513) 684-6696 E-mail: mary.mclain@eeoc.gov
Treasurer/Newscaster Editor: Shirley Cochran (513) 732-7397 Fax: (614) 863-4775 E-mail: scochran@insight.rr.com
Immediate Past President: Wendy Hawbaker (440) 576-3628 E-mail: ashtamediate2@suite224.net
Mark your calendars for more of our Year 2000-2001 meetings:
All meetings to be held at 11:30 AM at the MCL Cafeteria at Westerville and Schrock Roads in Westerville until further notice: (Directions on back page.)
August 2, 2002: Votes on proposed two-year plan.
October 4, 2002: TBA
December 6, 2002: TBA
President’s Column
By Bridget Durham
I’d like to thank all of those who responded to the request for information in the May Newscaster. It was truly exciting, as well as enlighten, and even affirming, to open and read your emails. Some of what you asked for/about has been incorporated into a proposed 2-year goals statement. I am not entirely sure what to call this “document” as to my knowledge OMA has never had one. Strategic plan, business plan, goals statement, wish list…….an ambitious body of work. (Suffice it to say, that whelping, raising and finding homes for our seven boxer puppies was a piece of cake compared to what we are proposing to do over the next 24 months!)
For those of you who missed our June 7, 2002 meeting, I’d like to take this opportunity to bring you up to speed. In addition to an informative presentation on the pros and cons of OMA becoming a Chapter of the Association of Conflict Resolution (ACR), by Marya Kolman, the Executive Committee proposed a detailed 2-year business plan. The 2-year strategic plan will be formally presented and voted on at the August 2, 2002 meeting.
Due to the newness of such an approach, the significance of the tasks and issue, and our desire to be as inclusive of membership input as possible, we will use the entirety of the August 2 nd meeting to discuss and vote on this “project.” We will resume our traditional networking luncheon with a presenter on October 4, 2002.
First and foremost, OMA’s mission would not in any way be altered by any of these items. Our purpose in developing and proposing this plan is simply to generate more opportunities for our members, assume a leadership role in Ohio’s mediation community and to build bridges between ourselves and other leaders in Ohio’s mediation community. There would just be more going on, in addition to our monthly luncheon meetings. The mission of OMA would not change!
Items in Proposed Two-Year Plan:
- The Executive Committee proposes OMA enter into a cycle of planning , 2 years at a time. This cycle would enable the incoming President and President-Elect to be proactive and deliberate in their leadership of OMA. At the conclusion of OMA’s annual meeting/seminar, in April, the newly elected Executive Committee would plan a series of May meetings to establish, define and prepare to propose at the June meeting, their 2-year business plan.
- The current Executive Committee would like to re-establish four committees . Each committee would have an Executive Committee liaison. Committees, Executive Committee Liaisons and duties being proposed are:
- Membership Committee – Secretary/EC Liaison
The purpose of the Membership Committee would be to foster and promote the growth of membership, keep accurate/current membership roster, collect dues and send out renewal reminders, maintain and update on line roster, secure member profiles and publish four in each edition of the Newscaster, host one membership drive per year, respond to membership inquiries, develop and send “Welcome New Member” packets, and revise/update membership application. Sharon Travis has volunteered to be the Membership Committee chairperson.
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- Public Relations Committee – President Elect/EC Liaison
The purpose of the Public Relations Committee would be to engage in public education, tell “stories” of mediation, actively solicit speaking/presentation opportunities for OMA, finalize current draft brochure and make available, work with Annual Event Committee to promote OMA’s annual event, develop a traveling tri-fold OMA display, and work with Membership Committee to develop a “Welcome New Member” packet. Two members have expressed interest in being involved in this committee. (Jay Patterson and Joe Palmer)
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- Annual Event Committee – Vice President/EC Liaison
The purpose of the Annual Event Committee would be to secure a location/facility for the annual event, seek and select presenters, handle all aspects of registration, and work with the Public Relations Committee to promote the event.
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- Advisory Committee – President/EC Liaison
Membership on this committee is proposed to be “position specific.” The positions being proposed are:
· Ohio State Bar Association, Dispute Resolution Committee Chairperson
· Director, Supreme Court of Ohio’s Dispute Resolution Section
· Director, Ohio Commission on Dispute Resolution & Conflict Management
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- Representative from Ohio State University’s Dispute Resolution Certificate Program
- Representative from Capital University’s Dispute Resolution Certificate Program
- Representative from Antioch University’s Masters in Dispute Resolution Program
- Representative from Ohio’s community of Community Mediation Centers
- Representative from Ohio’s community of Private Practice Mediators
- Representative from Ohio’s minority/cultural issues/diversity mediation community
- Representative from Ohio’s Legislative community
- At-Large
- At-Large
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The purpose of the Advisory Committee would be to provide OMA with a structured opportunity to establish contacts and relationships, decrease the duplication of efforts, enhance working relationships and resources available to OMA, create a “council of elders”. The Executive Committee would maintain its ability to make decisions and recommendations to and for the membership. The Advisory COMMITTEE would not function as an Advisory Board.
“Committee/Commissioner” Membership for OMA’s President would be sought as a “reciprocal” at OSBA’s DR Committee, the Supreme Court’s DR Board as well as the Ohio Commission’s Commission.
Additional goals for the 2002-2004 planning cycle include:
· Secure “ membership ” for non-OSBA (= non-attorney) mediators to OSBA’s Dispute Resolution Committee . OMA President, Bridget Durham, spoke to the OSBA DR Committee in regard to this matter during their May, 2002 meeting. There is no opposition to non-OSBA members being involved with the committee. The committee has agreed to look into the formal process for requesting membership be made available to non-OSBA members. It is however, expected that this process will be cumbersome, lengthy and possible unsuccessful. In the meantime, OMA members have been invited to attend and participate in the next two OSBA DR Committee meetings. The dates are September 13, 2002 and January 10, 2003. OMA President, Durham has been added to the Committee’s list serve and will be included in all committee communications. This information will in turn be reported/forwarded to OMA’s membership. Times and locations of these next two meetings will be forwarded as well.
· Create and begin using a “Member Profile” (see Membership Committee). This would be a separate page of the membership application and become a tool for getting to know our current as well as most recent members. Information would revolve around that member’s experiences in mediation, “quotable quotes”, interests, and types of mediation services you might like to have publicized in the Newscaster.
· Develop OMA’s annual event into a two-day event. (See Annual Event Committee). Initial thoughts are that, in addition, to the current one-day presentation, we add a second day affording OMA members an opportunity to make presentations. This structure would increase member awareness, exposure and profile within the Ohio mediation community. Ideally, “member presented sessions” would be scheduled for the morning and repeated in the afternoon, enabling every participant to benefit from attending two “member presentations.”
· Develop and present a “ votable budget ” at the 2003 Annul Meeting. OMA does not use an operating budget.
· Increase membership dues from $35. – to $50. – effective April 2003.
· Develop a traveling, tri-fold, OMA display . (See Public Relations Committee).
· Membership Committee would hold a minimum of one membership drive “event” each year.
· Contested elections for seats on Executive Committee as well as standing committees.
· Development and use of a “Welcome New Member” packet. (See Membership and Public Relations Committee.) This packet would include, a membership directory, three most recent editions of Newscaster, welcome letter with information about leadership and committee work opportunities, copy of by-laws, and a list of upcoming meetings and presenters.
As you can see, we have been busy and are sincere about responding to your needs and OMA’s future. Please join us on August 2, 2002 for a discussion and vote on this issue.
Patricia (Patti) Maiorino OMA’s new Vice President
–Ohio Attorney (almost 20 years) with state-wide practice limited to mediation, arbitration, and conflict management services. Practice includes domestic, civil, business, employment mediation. Truancy mediator with Project SMART. Peer mediation instructor to Knox County middle school students. Arbitrator with Better Business Bureau. On-line mediator with SquareTrade.com. Mediator for Knox County and Licking County Board of Realtors.
–Former municipal court judge (8 years) and domestic relations referee (4 years)
–Hanover College, BA; University of Kentucky College of Law, JD
Ohio State Bar Association Dispute Resolution Committee Meetings
As a result of OMA’s ongoing dialogue with the Ohio State Bar Association’s Dispute Resolution Committee, all OMA members are invited to attend the committee meetings scheduled for September 13, 2002 and January 10, 2003. The Committee meets at the Hyatt on Capital Square during the OSBA’s committee meetings at 3:15 PM on Friday afternoon. Meetings are usually no longer than two hours and are informative as well as a place to network with others in the dispute resolution field.
New Book by an OMA Member: Assembling this list I am reminded how fortunate I am to know and work with fine people… some of you have been my friends for many years, others newer friends with whom I share the effort of furthering mediation. I have written a novel, HERE ON MOON, recently published, about a woman who struggles with infidelity and divorce, and mediation is a major player in helping her get over it and get on with it. The book is available online and in bookstores and libraries. If you choose to read it, please let me hear from you. Ed Krauss
Officers divide State
The OMA officers have divided the State of Ohio into four basic regions and have taken on the task of contacting mediators in those counties to see if there is an interest in a meeting on the new responsibilities under the UMA and what the OMA might be able to do for them. Each officer’s counties list is as follows: NORTHEAST—Wendy Hawbaker: Ashland, Ashtabula, Carroll, Columbiana, Cuyahoga, Geauga, Lorain, Lake, Mahoning, Medina, Portage, Richland, Stark, Summit, Trumbull, Wayne, Tuscararus, Harrison, Jefferson. NORTHWEST—Bridget Durham: Crawford, Defiance, Fulton, Hancock, Henry, Lucas, Marion, Morrow, Ottawa, Paulding, Putnam, Sandusky, Seneca, Van Wert, Williams, Wood, Wyandot, Delaware, Auglaize, Mercer. SOUTHEAST—Shirley Cochran: Athens, Belmont, Fairfield, Guernsey, Hocking, Jackson, Lawrence, Monroe, Morgan, Muskingum, Noble, Perry, Vinton, Washington, Franklin, Knox, Coshocton. SOUTHWEST—Martha Antolik: Adams, Brown, Butler, Clark, Clermont, Clinton, Darke, Fayette, Greene, Hamilton, Highland, Madison, Miami, Montgomery, Pickaway, Pike, Preble, Ross, Scioto, Warren, Shelby, Union. If you are from any of these counties, or know of mediators or programs in these counties, contact the appropriate officer at the e-mail or phone listed above.
VOLUNTEERS NEEDED FOR
MOCK MEDIATION FORUM
The Ohio Judicial Conference is sponsoring a pilot Mock Mediation Forum for 7 th and 8 th graders in Cuyahoga, Lake and Ashtabula Counties for the fall of 2002.
This inaugural Forum will include teams from 25 schools who have existing conflict resolution programs. Students will be given a case reflecting a real-life situation they might encounter, and volunteer teachers and coaches will guide them in mediation techniques. On the day of the Forum, teams will gather at a centrally located site and will demonstrate a mediation to a team of evaluators. Teams will be given feedback and constructive criticism and will be awarded a ranking. A group session for all 25 teams will culminate the Forum and will give the students the opportunity to observe professional mediators in a simulated session.
Volunteer coaches and evaluators are needed to make this project a success. Please contact Wendy Hawbaker, OMA Immediate Past President, at (440) 576-3628 ashtamediate2@suite224.net or Karen Frees at the Ohio Judicial Conference (800) 282-1510, for more information.
!!TIME TO RENEW YOUR MEMBERSHIP!!
When you signed up for the Annual Conference did you conveniently send in your $35 annual dues for the 2002-2003 year? If not, please complete the Membership Application that has been mailed to you so we have accurate, updated information, or contact any officer for an application by e-mail attachment or snail mail.
New Members and Additions/Corrections to the Directory:
New and renewing members may send applications to OMA’s treasurer, Shirley Cochran at 28987 Liberty Bell Lane, Reynoldsburg OH 43068. Contact Shirley or Sharon Travis, Membership Committee Chair, for membership applications or to provide updated addresses, phone numbers, etc., for OMA’s mailing lists and directory. A revised membership application can be sent electronically for your convenience.
New Members:
Richard L. Altman
Northwest Ohio Mediation Services
C/o Henry County Courthouse, POB 70
Napoleon, OH 43545
419/592-5105
419/599-0803 FAX
ffofnwoh@brightnet.net
Better Business Bureau of Northwestern Ohio and Southeastern Michigan, Inc.
Faye E. Wenzlick
3103 Executive Parkway #200
Toledo, OH 43606
419/578-6000
419/578-6001 FAX
faye@toledobbb.org
Areas of Practice: Business/Commercial, Consumer/Business
Gina Crawford
23818 Cliff Drive
Bay Village, OH 44140
440/617-0377
gmcrawfo@yahoo.com
Areas of Practice: Family, Divorce, Juvenile, Interpersonal
Robert M. Curtis
9261 Pekin Road
Novelty, OH 44072
440/338-4923
rmcurtis@adelphia.net
Areas of Practice: Family, Divorce, Neighborhood/Community
Jan Marie Fritz
7300 Aracoma Forest Drive
Cincinnati, OH 45237
513/556-0208
513/556-1274 FAX
jan.fritz@uc.edu
Areas of Practice: Interpersonal, Neighborhood/Community, Business/Commercial, Environmental
Sheryl A. Gould
2862 Southfield Drive
Beavercreek, OH 45434
937/429-4923
937/426-9547 FAX
sachgould@yahoo.com
Areas of Practice: Family, Divorce, Interpersonal, Neighborhood/Community, Juvenile, Civil
Eddie W. Jones, Jr.
2372 Rolling Rock Drive
Columbus, OH 43224
614/891-9972
614/891-2903 FAX
Areas of Practice: Labor/Employment
Robert H. Monnaville, Attorney at Law
163 N. Sandusky Street
Delaware, OH 43015
614/570-8018
614/431-6442 FAX
bmonnavill@aol.com
Areas of Practice: Divorce, Interpersonal, Neighborhood/Community, Business/Commercial, Labor
Joy Unspeakable
Sandra Quick
1276 Saffron Place
Galloway, OH 43119
614/878-9779
614/878-9702 FAX
Areas of practice: Juvenile, Faith-Based
Creative Resource Options
Andrea Williams
POB 46487
Bedford, OH 44146
440/439-3867
440/439-9861 FAX
akwilliams@ix.netcom.com
Areas of Practice: Family, Juvenile, Neighborhood/Community, Business/Commercial, Disability
Corrections:
Sharon F. Buzo
Family Mediation Services
5571 Ridgewood Lane
Brecksville, OH 44141
Phyllis Hulewat, LISW
23230 Chagrin Boulevard
Building #3, Suite 350
Beachwood, OH 44122
216/831-2900
216/831-4306 FAX
phulewat@aol.com
Areas of Practice: Family, Divorce, Interpersonal
Tuscarawas County Court of Common Pleas
Andrea Fischer Imke
125 East High Avenue, Room 225
New Philadelphia, OH 44663
330/365-3269
fischer@co.tuscarawas.oh.us
Areas of Practice: civil and domestic relations
Main Street Mediation
205 W. Brown Street
New Lexington OH 43764
Edward E. Turner
State Employment Relations Board
65 East State Street – 12th Floor Columbus, OH 43215-4213
614/644-8716;614/466-3074 FAX
eturner@serb.state.oh.us
Martha Antolik
1424 Cole Court
Vandalia OH 45377
Phone: (937) 264-2336
Newscaster Material: Please send material for the Newscaster by the 20 th of the even numbered months to permit publication in the newsletter. The next deadline is August 20, 2002. My address is 2897 Liberty Bell Lane, Reynoldsburg, OH 43068. Phone/fax: (614) 863-4775. E-mail: scochran@insight.rr.com . Thanks, Shirley Cochran, Editor .
Negotiation Tips from Sherman’s Executive Communicator. Subscribe for free at www.ShermanLeadership.com
·ESPN recently aired an interview with the NBA’s most prolific intimidator of referees, Rasheed Wallace. The Portland Trailblazer basketball star has received his share of technical fouls for his
outrageous conduct. But the interview took on an interesting twist when the focus switched
to the possible source of Rasheed’s style of negotiating . . . his mother. Rasheed’s mother said that her son “may” have learned to deal with conflict from her. With a sly smile on her face, she admitted that she “enjoyed” intimidating others.
·Individuals who have gone through life attempting to intimidate are everywhere. You probably know by now, however, that no one can intimidate you. You allow others to intimidate. You also know that these people can smell fear. If your eyes move from theirs as they confront you, they sense that you are intimidated and move in for the kill.
·Play by their rules and you lose. Change the rules and you just may succeed in dealing with life’s most stressful negotiator. Here’s how: The intimidator wants you to react. They don’t expect you to remain calm and in control. Remember, it’s a game for them. And they’re good
at it. Don’t play on their terms.
·A corollary of staying calm is to say nothing. It is one of life’s hardest lessons, but if your response will add nothing but fuel an already out of control situation, remain calm . . . and say nothing.
·Intimidators over-generalize and speak in broad terms. You should respond calmly and dissect these over-generalizations with questions requiring explanation. Intimidators have difficulty explaining their statements. Attorneys have long recognized that a detailed, logic-filled legal brief or the submission of numerous detailed motions, can throw the intimidator off balance.
·Intimidators love an audience. Often, their antics diminish when you take them aside, out of earshot of others.
·Intimidators are at their best when there is no process to control their outlandish behavior. Your job is to bring structure to the discussion. Set ground rules in the beginning. Find objective
standards or third parties to bring reason to the negotiations. Use the legal process if appropriate.
·Of course, all of these ideas suggest that you want to negotiate with an intimidator. If not, the best advice is to simply walk away.
Negotiation Tips: Turf Battles! from Sherman’s Executive Communicator. Subscribe for free at www.ShermanLeadership.com
·The blame game between the CIA and FBI is the classic result of two cultures that refused to “negotiate” over the sharing of information that may have prevented the September 11 terror attacks. These government agencies protected their “turf” with a vengeance despite the calamitous potential fallout that was arguably just over the horizon.
·But before you jump on the condemnation bandwagon, ask yourself how many turf battles you find yourself facing, and how you react to these conflicts. They may not approach an FBI vs. CIA conflagration, but the emotion you exhibit during these arguments is probably similarly
charged.
·Need proof? Your first turf battle probably began at a very early age when your brother or sister tried to take away your favorite toy or mom told you to share your bicycle. No doubt you resisted this encroachment on your territory.
·Modern examples are found daily in the legislative arena as interest groups propound positions and opposing interest groups battle those issues. Jim Palmer, CEO of Benchmark Pathways and former P&G executive, called this process “duck hunting,” where ideas became “ducks” that
opposing groups shot down regardless of their merit. Government decision-making becomes a kind of “duck shoot” that has little to do with consensus building and everything to do with protecting your piece of the pie.
·My own experience is in health care where every piece of legislative touches the turf of another “threatened” health care profession. While sound arguments to support various positions may emerge from these debates, they all share a common thread: the desire of one or more
parties to protect their turf — to maintain control — to defend what they view as an advance on their terrain.
·So how do you negotiate turf battles? It’s not easy.
·Begin by asking the basic question: Does the other side WANT to negotiate? Often, the other side does not want to engage in dialogue, which is fundamental to all negotiations. If that is the case, you have to determine if negotiation is even possible. The courtroom or a legislative solution may be your only recourse. (Or go to war as in the case of India and Pakistan.)
·You can often find ways to bring the other side to the negotiation table by closely examining their needs, desires, and fears. Can you build a coalition with other allies that give a stronger perception of your power? (When the “bad guy” in the movies takes a hostage, the police often form a “coalition” with the mother of the hostage-taker because of his need to please mom.) Trade associations understand the power of allies in forcing recalcitrant parties to bargain.
·An influential person or group can sometimes intervene and encourage dialogue. (It is possible that the President could have demanded changes within the FBI and CIA and appointed Directors charged with this duty.) These individuals can also serve as mediators as we see played
out in world events.
·If you begin dialogue, consider discussing turf issues openly. Is there a resolution that does not drastically change the dynamics of the relationship? Can you solve the problem in a way that allows the other side to convey to constituents that the decision was in their best interests? Such a consequence would require honest brainstorming among the parties and is very difficult to accomplish.
·Turf battles are among the most difficult negotiations because they are rarely articulated and are fought with such fierce emotions. Perhaps, we as humans control so little. And when that small piece of the pie is threatened, our emotions take over, producing our own personal wars and
conflicts.
Litigation Section Publishes Guidelines on Ethical Settlement Practices BY JOHN GIBEAUT (From the ABA Journal e-version)
Sorting out ethical dilemmas that arise during settlement talks can become a major operation. Resolution can mean hours of poring over conduct rules, case law, statutes, restatements and more.
The ABA Litigation Section is trying to fill a void and point lawyers in the right direction with its newly published Ethical Guidelines for Settlement Negotiations . The House of Delegates is expected to decide whether to adopt the guidelines as association policy when it convenes in August at the annual meeting in Washington, D.C.
“There was nothing out there that compiled the relevant rules that apply in a settlement context,” says project chair Edward M. Waller Jr. of Tampa, Fla. The project was initiated in 1999 by Ronald Jay Cohen, then section chair-elect, and was completed in May.
The 41 guidelines, for use in cases involving private parties, incorporate ethical principles applying to settlements gleaned mostly from ABA ethics opinions and the Model Rules of Professional Conduct, as amended by the House in February. Other significant sources include the predecessor Model Code of Professional Responsibility, still used in many states, and the Restatement of the Law, Third, The Law Governing Lawyers.
The guidelines are intended to cover settlement discussions either directly between the parties or in cases using third-party neutrals. However, while they may be helpful in mediation and nonbinding arbitration, the guidelines urge lawyers to seek other sources for answers to questions specific to those forums.
Some areas the guidelines cover involve clients’ authority over settlements, and representation of multiple clients and insured clients. Also addressed are issues that arise in lawyer-to-lawyer dealings. They include whether attorneys may lie about material facts, give up settlement cash for a favorable fee, fail to report opposing counsel’s misconduct, and use threats or extortion to gain leverage.
While practitioners still must consult conduct rules, statutes, case law and other resources for particular jurisdictions, the guidelines can clue them in on where to start by alerting them to authority already out there.
“We didn’t really attempt to draw the line, but to make practitioners aware that there are lines,” Waller says. “We’re not trying to rewrite the ethics rules, replace the ethics rules or even interpret the ethics rules.”
The guidelines do, however, point out some notable conflicts between ABA policy and other rules of law. In gray areas, the committee notes also suggest best practices and aspirational goals.
For example, the Model Rules forbid a lawyer from assisting a client in criminal or fraudulent conduct but say nothing about conduct that is merely illegal or that is in pursuit of unconscionable settlement terms. “Nonetheless,” the notes state, “as a matter of sound professional practice, a lawyer should discourage a client from pursuing such terms and should decline to pursue them on the client’s behalf.”
Among the highlights:
• 4.2.1, prohibiting settlement terms that restrict a lawyer’s right to practice. “The most obvious example of an ethically impermissible settlement provision of this nature is one that expressly prohibits a plaintiffs lawyer from subsequently representing other plaintiffs in litigation against the defendant.”
• 4.2.2, prohibiting a lawyer from placing interest in a negotiated fee ahead of the client’s interest in a favorable settlement. The notes point out the tension between the client’s and the lawyer’s interests when the client is asked to give up attorney fees for other favorable terms. They also cite split authority on whether a retainer can forbid the client from waiving the fees. As a suggested best practice, fee discussions should be postponed until agreement is reached on other terms.
• 4.3.1, prohibiting a lawyer from using settlement talks in bad faith, such as scheduling them to disrupt opposing counsel’s trial preparation. Still, settlement is an alternative and not an obligation, so it’s not bad faith for a party to refuse to negotiate or settle at all.
• 4.3.2, prohibiting a lawyer from using extortion or threats of litigation or criminal charges to win a settlement. However, not all threats are forbidden, such as one to file a lawsuit, if the lawyer has a good-faith basis for the claim.
DEFINING THE LIMITS ON MANDATORY ARBITRATION Montana Supreme Court Strikes Down Arbitration Clause; Concurrence Addresses Right to Jury Trial BY LESLIE A. GORDON (From the ABA Journal e-version)
A recent decision by the Montana Supreme Court illustrates that high courts are increasingly willing to strike down mandatory arbitration clauses in consumer cases–specifically, those industry standard arbitration provisions used for opening accounts with stockbrokers.
The June 13 holding in Kloss v. Edward D. Jones & Co . , No. 00-507, comes on the heels of two similar decisions by the West Virginia Supreme Court.
A five-judge panel of the Montana Supreme Court was unanimous in its decision to strike down the arbitration clause signed by an elderly widow. (The seven-member court usually assigns five justices on a rotating basis to panels that issue its opinions.)
But what makes Kloss unique is a concurrence that adopts a constitutional argument that has been floating around academic circles for years–that mandatory arbitration interferes with the right to a jury trial. Any waiver of that right, according to the concurrence, must be knowing, intelligent and voluntary.
The plaintiff in the case, Alice Kloss, a 95-year-old widow, sought damages caused by her stockbroker’s wrongful conduct. In response, the brokerage firm filed a motion to compel arbitration based on a provision in a form contract that Kloss signed when establishing a living trust account with the broker’s firm.
The concurrence written by Justice James C. Nelson relied on the Montana Constitution and argued that mandatory consumer arbitration agreements, such as those typically used by stockbrokers, unconstitutionally foreclose consumers’ rights of access to courts and to a jury trial.
A jury trial, Justice Nelson wrote, “is a privilege of the highest and most beneficial nature and our most important guardian both of public and private liberty.” Therefore, according to the concurrence, any contract provision, such as a mandatory arbitration clause, that openly or even subtly forfeits the right to a jury trial must be “rigorously examined” by the courts.
The opinion of the court, on the other hand, relied on a contract law principle that bars enforcement of adhesion contracts against the weaker party when the terms are not within the reasonable expectations of consumers. Four justices joined this opinion, which held the mandatory arbitration provisions did not satisfy reasonable expectations.
Kloss’ broker owed her a fiduciary duty, which included explaining the consequences of the arbitration clause, this opinion said.
But the same four justices who signed the opinion of the court also signed the concurrence based on constitutional law. A fifth wrote a separate concurrence, joined by one of the other four justices, to emphasize that the widow had signed the contract before seeing its terms.
The fact that the same four justices had signed two opinions relying on different legal principles created some confusion. A spokesman for the court explained that the constitutional issue was addressed in a concurrence rather than the opinion of the court because the parties had not completely briefed the matter.
“The fact that four justices signed on to this concurrence ought to send a message to the practicing lawyer that this is a theory that is going to be looked at in the future,” said the spokesman, who asked not to be identified.
None of the court’s opinions reached the issue of unconscionability–that is, whether the arbitration provision was so one-sided as to not provide Kloss any meaningful choice regarding the terms.
Although the court did not hold that mandatory arbitration clauses are unconscionable per se, its opinion did set forth several questions to help determine when they will be enforced. These included whether arbitrators’ fees make small claims prohibitive and whether secret arbitrations can conceal defendants’ illegal business practices .
The jury trial argument addressed in the concurrence isn’t new–some law professors have been advocating for years the Seventh Amendment jury trial argument as a way around the Federal Arbitration Act in federal employment cases. University of Missouri-Columbia professor Jean Sternlight, whose law review article on the topic was quoted by the Kloss concurrence, is nationally known as a critic of companies’ imposition of mandatory arbitration in consumer and employment contexts.
“When we first started to see mandatory arbitration clauses, courts blindly assumed that all are acceptable,” Sternlight says. “But they are now taking a more careful look, evaluating both the content of the clause and the facts of the particular situation.”
While not a binding holding, the Kloss concurrence is “a very scholarly opinion that shows the justices have been thinking about” this constitutional jury trial argument, Sternlight adds. “It will help other courts to see that issue better.”
The attorney for the defendant, Edward D. Jones & Co., did not return calls for comment.
But some lawyers think the Federal Arbitration Act will stand up to the challenge. “The Kloss case is a good example of the maxim ‘Bad facts make bad law,’ ” says Robert Dolinko, an employment lawyer with Thelen, Reid & Priest in San Francisco.
“However, the U.S. Supreme Court has upheld the constitutionality of the Federal Arbitration Act against other attacks, and it is likely to conclude that an agreement to arbitrate is a valid waiver of the right to a jury trial as long as the waiver is ‘knowing,’ ” he adds.
“While it remains to be seen how the court will determine a knowing waiver, it is not likely to create as stringent a standard as that suggested by Justice Nelson’s concurrence in Kloss ,” Dolinko says. “Whatever the supreme court decides in this regard will be readily implemented by employers in the securities industry and elsewhere.”
Online Negotiation Competition for Law Students
Along with the Center for Information Technology and Dispute Resolution of the University of Massachusetts and others, Texas Wesleyan is going to put together the second online negotiation competition for law students from around the world during ADRCyberweek at the end of February 2003. We are also going to put together a prototype online arbitration competition (students as advocates and students as arbitrators) over the late fall and winter ending in ADRCyberweek 2003. If you know law schools that might be interested in fielding teams for either or both of these online competitions please have them contact Alan Gaitenby of CITDR (gaitenby@disputes.net) or myself as soon as possible so that timely information can be provided as these competitions develop. Law students can be from any law school in the world and only need a computer, an internet browser, an internet connection, and a faculty coach. Competitions will be in English this time around though we hope in future iterations competitions may be in many languages. There will be more information on these two competitions as we go forward. Please note that depending on how it goes, space may be limited, so please contact us as early as possible. You can see this past year’s competition at the Center for Information Technology and Dispute Resolution website at www.ombuds.org look under Cyberweek2002. A description of the 2002 online negotiation competition will be published in Volume 19(4) of the Journal of International Arbitration coming out in August 2002 (If someone wants an advanced word version I would pleased to send it to them off line). Benjamin Davis, Associate Professor, Texas Wesleyan University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102 Tel.:1 817 212 3915 Fax.:1 817 212 3965 E-mail:bdavis@law.txwes.edu
Job Announcements: We have no announcements for this Newscaster, but there are some announcements that become available for the meetings. Be sure to attend the meeting and check the Newscaster for openings we might receive notice of and if you have a position you would like to have listed, provide it by the deadline to the Editor.
SUBMIT A PROPOSAL FOR ACR’S THIRD ANNUAL CONFERENCE
ACR’s Third Annual Conference: The World of Conflict Resolution: A Mosaic of Possibilities October 15-18, 2003 Orlando, Florida USA The 2003 ACR Conference Planning Committee invites proposals that address questions facing the field such as: What are the best practices in conflict resolution? What do we — as conflict resolvers — want our field to become? What are the opportunities and challenges? What are the threats? What are the creative uses and innovative practices of conflict resolution? How do youth fit into the field? The committee is also seeking proposals that address such practical issues as how one develops a successful conflict resolution practice. For more information, or to submit a proposal, go to:
http://web.archive.org/web/20030206034640/http://www.acresolution.org/acrconf.nsf/ac03sessioninput
American Bar Association Section of Dispute Resolution Calendar of Events
August 8-13, 2002 – ABA Annual Meeting
August 9-11, 2002 – Section of Dispute Resolution CLE Programs and
Meetings, Washington, DC, The Washington Hilton (202) 483-3000 CLE Programs at the Presidential CLE Center (Marriott Wardman Park) www.abanet.org/dispute
October 3-4, 2002 – National Institute on Advanced Mediation Skills
Training Miami, FL 800-285-2221 http://web.archive.org/web/20030206034640/http://www.abanet.org/cle/programs/n02mst1.html
October 10, 2002 – 2nd Annual Conference on Indian Tribes, Natural
Resources Conflicts and ADR Missoula, MT (202) 457-6155 www.pattonboggs.com
October 21-22, 2002- The Future of Commercial Arbitration New York, NY The Association of the Bar of the City of New York (212) 382-6620
December 5-6, 2002 – National Institute on Advanced Mediation Skills Training San Francisco, CA 800-285-2221 http://web.archive.org/web/20030206034640/http://www.abanet.org/cle/programs/n02mst1.html
February 5-11, 2003 – ABA Mid-Year Meeting (Section of Dispute Resolution Meetings TBA) The Renaissance Madison (206) 583-0300 Seattle, Washington
March 20-22, 2003 – 5th Annual Dispute Resolution Spring Conference Henry B. Gonzalez Convention Center Hilton Palacio del Rio (210) 222-1400 San Antonio, Texas www.abanet.org/dispute/SanAntonio.html
August 7-13, 2003 – ABA Annual Meeting (Section of Dispute Resolution Meetings/Programs TBA) San Francisco, California
For additional information, contact: American Bar Association Section of Dispute Resolution 740 15th St. NW, Washington, DC 20005 (202) 662-1680, Fax (202) 662-1683 dispute@abanet.org, http://web.archive.org/web/20030206034640/http://www.abanet.org/dispute
TRAINING & WORKSHOPS :
Mark your calendar for one of the region’s best conferences in 2002! Judith S. Wallerstein, PhD., is widely considered the world’s foremost authority on the impact of divorce on children and their parents, and the author of The Unexpected Legacy of Divorce: A 25 Year Landmark Study . Dr. Wallerstein will speak in Cincinnati about the conclusions from this in-depth, close-up 25-year study, which followed the lives for 131 children whose parents divorced. The conference is at the Cincinnati Cintas Center and starts at 7:30 PM on Friday, October 11, 2002, when Dr. Wallerstein will review her study findings in detail. On Saturday morning, October 12, 2002, from 9:00 AM-noon, Dr. Wallerstein will speak with a panel of experts from both the mental health and legal communities. Co-sponsored by the Cincinnati Psychoanalytic Institute, Beech Acres, and The Krug Lecture Series. For more information call (513) 961-8886.
Beech Acres Mediation Center
Basic Mediation Training for Professionals Sept. 26-27, 2002 or February 6-7, 2003 (Thursday and Friday) presented by Marie Hill, M.Ed., LPC and Lou Ann Wood, M.Ed., LPC, at Athenaeum of Ohio/Mt. St. Mary’s Seminary Pastoral Center. This program will present, in 12 hours the basic process of mediation. The style is interactive using video and role play. Early registration by September 3 or January 15 is $250. Contact Amy Applegate, 6881 Beechmont Avenue, Cincinnati OH 45230 (513) 231-6630. The Unexpected Legacy of Divorce: A 25-year Landmark Study by Judith S. Wallerstein PhD on Friday, October 11, 2002, one-hour review of the study findings and Saturday October 12, 2002 for three credit hours a panel discussion with experts from the mental health and legal communities join Dr. Wallerstein. Co-sponsored by the Cincinnati Psychiatric Society and the Krug Lecture Series. Call (513) 961-8886 or visit http://web.archive.org/web/20030206034640/http://www.cps-i.org/ . Divorce/Family Mediation Training November 13-15 and 18-19, 2002 or March 12-14 and 17-18, 2003, presented by Marie Hill, M.Ed. and John L. McElwee, J.D. This is the 40-hour Divorce/Family Mediation program with an interactive style using lectures, video, role-play and exercises. Discounted cost is $800 if by October 15 or Feb. 25. Contact Amy Applegate at the address or phone listed above.
Capital University Law School Center for Dispute Resolution
Basic Mediation and Advanced Mediation Training Information Center for Dispute Resolution, Capital Law School, 303 E. Broad Street, Columbus OH 43215-3200, Phone (614) 236-6430/ Fax (614) 236-6956 CDR Directors include Roberta S. Mitchell and Scot E. Dewhirst, Co-Directors of the Center, and Terrence T. Wheeler, Executive Director of the Center.
Conflict Management Services
Presenters Cheryl M. Lowry, Ph D., Robert N. Wistner, J.D., Leslie Martin, B.A., and Kenneth T. Davis, BA Contact Cheryl (614) 488-4540, Suite 126, 1500 W. Third Avenue, Columbus, OH 43212 E-mail: cms@iwaynet.net. Website: http://web.archive.org/web/20030206034640/http://www.conflictmgmt.com/ General/Basic Mediation : September 5-6, October 2-3, and November 7-8; Divorce and Family Mediation : September 19-20 & 25-27, and November 14-15 & 20-22; Mediating Divorce Finances : August 26-27; Transformative Mediation : October 15-16; Principled Negotiation : October 24-25; Mediating with Teenagers : October 11 ; Asking Strategic Questions : October 9; Identifying Issues and Interests in Mediation : October 10; Victim-Offender Mediation : October 17-18; Civil Mediation : August 30 and October 29; Marketing Professional Services : November 4; Group Facilitation : October 21.
Community Mediation Services of Central Ohio and The Columbus Bar Association present Basic Mediation Training October 1-2, or December 11-12, 2002 and the 40 hour Domestic Mediation Training October 24-25, 29-31, 2002. For more information or registration brochure, contact CMS, 80 Jefferson Avenue, Columbus OH 43215, phone (614) 228-7191 or fax (614) 228-7213
The Association for Conflict Resolution 2002 Annual Conference , Coastal Collaboration: Emerging Practices in a New Era of Conflict Resolution, August 21-24, 2002, Town and Country resort and Convention Center, San Diego California. Ohio speakers include Crevon Tarrance of the Supreme Court of Ohio; Jeanne A. Clement, Ohio State University; Sandra Kaufman, Cleveland State University; Marya Kolman, Franklin County Domestic Relations and Juvenile Court; Madeleine G. Trichel, Interfaith Center for Peace of Columbus; Chester J. Bowling, Ohio State University. Registration forms to ACR/2002, PO Box 25112, Arlington VA 22202 or questions to Paco Martinez at (703) 685-4130.
Begler Group Trainings in Unified Mediation: Working from a Gestalt
Perspective: Ann L. Begler of the Begler Group will present a three day training in “Unified Mediation: Working from a Gestalt Perspective “at the Gestalt Institute of Cleveland in September 2002. The workshop will run from Thursday afternoon, September 26, through Sunday morning, September 29. The training will teach participants how to use the gestalt cycle of experience as a framework to support mediation, how to work with resistance to avoid impasse and how the mediator’s awareness and immediate use of self can enhance opportunities for resolution. Additional information is provided by the Gestalt Institute of Cleveland. A one-day workshop on Unified Mediation: Working from a Gestalt Perspective will be presented as part of the annual conference of the Maine Association of Mediators. This workshop will take place on May 17, 2002 in Augusta, Maine. Additional workshops on Unified Mediation: Working from a Gestalt Perspective are being planned for Pittsburgh and Philadelphia.
October 16-19, 2002: The Center for Dispute Settlement (CDS) presents professional mediation training entitled, Mediation for the Professional, an interactive 3-day course, focused both on the skills of the mediator and on the skills of the parties and advocates in mediation. Led by Linda Singer and Michael Lewis, this course is designed for attorneys, managers, human resource and other professionals interesting in learning or further developing their mediation skills. Tuition: $895 before August 19, 2002, after August 19, 2002, $995. Payment may be made by check, money order, Visa or MasterCard. To register, please contact CDS at (202) 265-9572, ext 320. For more information check our website at http://web.archive.org/web/20030206034640/http://www.cdsusa.org/ . Location: Carnegie Endowment for International Peach, 1779 Massachusetts Avenue NW, Washington, DC. CDS courses have been approved for CEU and CLE credits.
Mediation for the Professional October 16-19, 2002: The Center for Dispute Settlement (CDS) presents
professional mediation training entitled, Mediation for the Professional, an interactive 3-day course, focused both on the skills of the mediator and on the skills of the parties and advocates in mediation. Led by Linda Singer and Michael Lewis, this course is designed for attorneys, managers, human resource and other professionals interesting in learning or further developing their mediation skills. Tuition: $895 if registered by September 15, 2001, $975 thereafter (payment may be made by check, money order, Visa or MasterCard. To register, please contact CDS at (202) 265-9572, ext 320. For more information check our website at http://web.archive.org/web/20030206034640/http://www.cdsusa.org/ . Location: Carnegie Endowment for International Peach, 1779 Massachusetts Avenue NW, Washington, DC CDS courses have been approved for CEU and CLE credits.
Web Sites of Interest:
Ohio Commission on Dispute Resolution and Conflict Management: http://web.archive.org/web/20030206034640/http://www.state.oh.us/cdr
Ohio Mediation Association: http://web.archive.org/web/20030206034640/https://mediateohio.org/
Ohio State Bar Association: http://web.archive.org/web/20030206034640/http://www.ohiobar.org/
The Conflict Resolution Master of Arts degree program at Antioch University/McGregor School http://web.archive.org/web/20030206034640/http://www.mcgregor.edu/
The Academy of Management, Conflict Management Division has their new newsletter on-line at http://web.archive.org/web/20030206034640/http://aom.pace.edu/cmd/newslett/newsletter2001.htm
“Addressing the Redress: A Discussion of the Status of the United State’s Postal Service’s Transformative Mediation Program” by Professor Lisa B. Bingham, Indiana University School of Public and Environmental Affairs. Cardozo On-Line Journal of Conflict Resolution, Vol. 2, 2001, http://web.archive.org/web/20030206034640/http://www.cardozo.yu.edu/ . Go to Publications, then On Line Journal, Current Volumes, Volume 2 No. 2, and Symposia and it is the first article.
DIRECTIONS TO OMA MEMBERSHIP MEETING LOCATION—MCL CAFETERIA
Schrock & Westerville Roads, Westerville Phone: (614) 818-1700
All meetings begin at 11:00 AM with the program immediately following.
From Western Ohio: Take I-70 East to I-270 North. Two exits past I-71 is Westerville Road. Take the part of the exit that will take you north on Westerville Road. Either turn right at Schrock Road, left at the light at Otterbein Road, and left into the shopping center (first driveway on left) or cross Schrock Road to next light, turn right into shopping center and follow driveway to far end of the center.
From Southwestern Ohio : Take I-71 North through town to I-270 East two exits to Westerville Road.. Take the part of the exit that will take you north on Westerville Road. Either turn right at Schrock Road, left at the light at Otterbein Road, and left into the shopping center (first driveway on left) or cross Schrock Road to next light, turn right into shopping center and follow driveway to far end of the center.
From Northern Ohio : Take I-71 South to I-270 East two exits to Westerville Road. Take the part of the exit that will take you north on Westerville Road. Either turn right at Schrock Road, left at the light at Otterbein Road, and left into the shopping center (first driveway on left) or cross Schrock Road to next light, turn right into shopping center and follow driveway to far end of the center.
From Eastern Ohio : Take I-70 West to I-270 North to the Westerville Road exit. Take the part of the exit that will take you north on Westerville Road.. Either turn right at Schrock Road, left at the light at Otterbein Road, and left into the shopping center (first driveway on left) or cross Schrock Road to next light, turn right into shopping center and follow driveway to far end of the center.
Ohio Mediation Association
c/o Ohio Commission on Dispute
Resolution and Conflict Management
77 South High Street, 24 th Floor
Columbus OH 43215-6108