December Mediation News from Thomas P. Valenti, P.C.

Thomas Valenti, P.C.

December 2009

December Mediation News
From Thomas Valenti, P.C.

What is Mediation?

Mediation is a process in which a neutral and impartial third party (the mediator) facilitates communication between negotiating parties which may enable them to reach an agreement. Mediation is an efficient and cost effective method for the resolution of both simple and complex cases.

"Cautious, careful people, always casting about to preserve their reputations... can never effect a reform."

- Susan B. Anthony

Thomas P. Valenti Elected to the Board of Directors of Mediators Beyond Borders

Mediators Beyond Borders - Partnering for Peace & Reconciliation is a non-profit, humanitarian organization established to partner with communities worldwide to build their conflict resolution capacity for preventing, resolving and healing from conflict. This partnership involves the design and implementation of sustainable peace building initiatives responsive to the needs and culture of the communities, and to the history of each conflict. MBB is not a first responder and is not prepared to intervene in the midst of violent crises.

Mr. Valenti leads the Hurricane Katrina Project that works with community-based mediators in New Orleans, LA and Biloxi, MS to improve their skills and to develop community mediation programs.

He also is involved with the Middle east Peace Initiative where the project team is working with an Israeli Jewish and Palestinian peace village, Neve Shalom Wahat Al Salam (NSWAS) and its Pluralistic Spirituality Center Project to develop an Israeli-Arab and Jewish co-mediation approach and service to mediate community and small business conflicts between Jew and Arabs.

Mr. Valenti is also assisting the Copenhagen Initiative where Mediators Beyond Borders is the only mediation organization approved as an observer organization at the United Nations Climate Change Conference. A delegation of nearly 80 mediators from 17 countries will attend to encourage delegates to include a mediation provision in the agreement, so as to increase the chances for successful collaboration.

Courts Decide Whether Arbitration Costs Render Forum Illusory

In remanding a case to the district court, the First Circuit Court of Appeals held that it is for a court to decide whether arbitration costs are so expensive as to render the availability of an arbitral forum illusory.

In Awuah v. Coverall North America, Inc., No. 08-1920, 2009 WL 159423 (1st Cir. Jan. 23, 2009), a dozen of Coverall North America's (Coverall) franchisees brought a class action against Coverall. Among the plaintiffs, three had franchise agreements that contained arbitration clauses, including Pius Awuah. Accordingly, Coverall moved to stay litigation pending arbitration with those three franchisees (collectively "Awuah").

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Battery and Assault Claims Not Within the Scope of an Employment Arbitration Agreement

The Court of Appeals of Mississippi has held that tort claims for assault and battery against a supervisor are not within the scope of a broadly-worded arbitration agreement, despite the agreement's language that it covers "all matters directly or indirectly related" to employment and to "claims involving and/or against... supervisors."

In Niolet v. Rice, No. 2008-CA-00922-COA, 2009 WL 1199114 (Miss. Ct. App. May 5, 2009), Niolet accompanied her supervisor Rice to an out-of-state business convention while employed with Teleplex Networks. Niolet alleged that at the convention Rice became intoxicated, attempted to assault her, have sexual relations and engaged with her in prolonged and detailed sexually-charged language. Niolet filed a complaint with Teleplex Networks. After an investigation, the company found that Rice was not responsible for his actions since he "blacked out."

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"Character cannot be developed in ease and quiet. Only through experience of trial and suffering can the soul be strengthened, vision cleared, ambition inspired, and success achieved."

- Helen Keller

Signature on a Quit Claim Deed Does Not Bind One to Arbitrate Under an Associated Security Agreement

The Missouri Court of Appeals has held that a quit claim deed executed to provide property for escrow does not bind the signing party to arbitrate under an associated agreement secured by the escrowed property, where the party has not signed the additional security and financial documents.

In Scharf v. Kogan, No. ED91612, 2009 WL 1196380 (Mo. Ct. App. May 5, 2009), the Kogans were in the business of making and selling fabricated domes, and sought to market these structures in Russia. To finance this expansion, the Kogans received funding through a series of agreements with the Scharfs. Additionally, at that point the office building for the Kogans was subject to judicial foreclosure.

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"Many people die with their music still in them. Why is this so? Too often it is because they are always getting ready to live. Before they know it, time runs out."

- Oliver Wendell Holmes

Non-Mutual Arbitration Obligation Invalidates Arbitration Agreement Incident to Consumer Loan Contract

The New Mexico Supreme Court held that an arbitration agreement incident to a consumer loan contract is not valid and enforceable if it contains a non-mutual provision preserving the drafting party's right to litigate upon a consumer's default.

In Cordova v. World Finance Corp. of New Mexico, No. 30,536, 2009 WL 1456347 (N.M. Apr. 29, 2009), Cordova entered into multiple small loan contracts with World Finance. Concurrent with the execution of each contract, Cordova signed a separate arbitration agreement. This agreement required arbitration of a wide range of disputes related to the loans, but preserved World Finance's ability to litigate any loan dispute if Cordova defaulted on the loan.

To read the full proposed bill, click here.