Dispute Resolution Section
April 2014
Save the Date!  
Mark your calendars for the following Dispute Resolution Section Event

Details are subject to change. Check your emails and the Atlanta Bar Association website for updates.

Dispute Resolution Section Breakfast 
Date: Wednesday, May 7, 2014  
Time: 7:30 am - 9:00 am 
Topic: "Choosing a Mediator: What Considerations Are Involved?" 
Speaker: Bruce Barrickman 
Barrickman, Allred & Young and BAY Mediation

Section Member: $20
Non-Section Member: $30  
Add $5 to receive 1 CLE hour

Study by Expert as Evidence Arbitration Agreement Unconscionable was not Adequate Basis for Denying Enforcement of Arbitration Agreement 
Citigroup hired an employee in 2008. Part of the hiring policy included the execution by the employee of an arbitration agreement covering all employment related disputes. The agreement incorporated arbitration rules of the American Arbitration Association. When in 2011 the employee was terminated, she filed a wrongful termination suit against Citigroup asserting violations of federal employment statutes including Title VII and the Family and Medical Leave Act. Citigroup filed a motion to compel arbitration which the employee challenged based inter alia on the claim that the policy was unconscionable and a violation of public policy. In support of her position the employee submitted evidence in the form of a study of employment arbitration awards that represented that it showed that arbitration of employment claims disproportionately favored employers in their outcomes over employees. The district court directed enforcement of the arbitration agreement and the employee appealed. 

New Study Shows That Consumers Lose in Most Class Action Lawsuits 

Published on December 24, 2013 in the Wall Street Journal, this article provides information about studies of outcomes of class actions as they relate to the issue of the vindication of rights of class members.  The study was put together by Mayer Brown.  The study concludes that few, if any, class members receive any benefit from class actions in litigation. 

Consumer Arbitration Before the American Arbitration Association

Executive Summary
March 2009
Searle Civil Justice Institute 

Issues and Background

Empirical evidence has become a central focus of the policy debate over consumer and employment arbitration. Both supporters and opponents of the proposed Arbitration Fairness Act, which would make pre-dispute arbitration clauses unenforceable in consumer and employment (and franchise) agreements, have recognized that empirical evidence on the fairness and integrity of consumer and employment arbitration proceedings is essential to making an informed decision on the bill. Yet the empirical record, particularly on consumer arbitration, has critical gaps.

One set of issues on which further empirical research would be helpful is the costs, speed, and
outcomes of consumer arbitrations. How much do consumers pay to bring claims in arbitration? How
long do consumer arbitrations take to resolve? How do consumers fare in arbitration, particularly
against businesses that are repeat users of arbitrators and arbitration providers? While a number of important studies on employment arbitration have been provided, the empirical record on these issues in consumer arbitrations is sparse.

American Arbitration Association Launches New Commercial Arbitration Rules
By Linda L. Beyea, Vice President, American Arbitration Association

On October 1, 2013 the American Arbitration Association (AAAź) launched its newly revised Commercial Arbitration Rules. Thousands of organizations across industry sectors look to the AAA and its 87 years of knowledge and experience to resolve a variety of disputes, including large and complex cases. Many of you are familiar with AAA, but for those who are not, a brief history. 
AAA was founded in 1926 as a not-for-profit, public service organization committed to the resolution of disputes through the use of arbitration, mediation, conciliation, and other voluntary procedures. In 2012 over 250,000 cases were filed with AAA in a full range of matters including commercial, construction, labor, employment, insurance, international and claims program disputes. Private parties as well as state and federal governments rely on AAA's expertise to handle challenging disputes. For example, AAA is now managing the mediation program for Storm Sandy claims in New York and New Jersey. 
Georgia Court Erred in Vacating Arbitrator Award under FINRA Arbitration Rules

The Georgia Court of Appeals recently considered a challenge to a superior court's vacatur of an arbitration award in a dispute under the Financial Industry Regulatory Authority ("FINRA") rules. Berger v. Welsh, A13A1782 (3/1/2014)

An evidentiary hearing was held under rules related to arbitration ancillary to federal securities regulation. In the Award by the FINRA arbitrator, monetary damages but not attorney fees were given. On petition, the superior court in Cobb County vacated the Award on several grounds, recognizing a different interpretation of release document and further including that findings like the arbitrator overstepped his authority and the arbitrator manifestly disregarded of the law. At the outset the superior court had determined to apply the Georgia Arbitration Code ["GAC"] statute on vacatur rather than the FAA.. On appeal the Court noted that either statute contained similar language content and had the same policy considerations on award enforcement.

What Happens In Mediation Stays In Mediation
By Andrea Doneff, Associate Professor and Director of the Legal Skills and Professionalism Program, Atlanta's John Marshall Law School

On November 18, 2013, the Georgia Commission on Mediation reminded mediators and attorneys that "Mediation Confidentiality is Forever." In Advisory Opinion 8, the Commission clarified that neither mediators nor attorneys may talk about mediation discussions, results, or processes that could identify a specific case without an agreement in advance between the parties about what can be discussed. The Commission emphasized that, if the parties anticipate talking with the press or public about issues that were discussed in mediation, they should decide who may talk and what will be said. They should then write that decision into their mediation agreement.

In This Issue
2013-2014 Section Board of Directors

Herbert H. (Hal) Gray III

Vice Chair/Chair-Elect
Rex D. Smith

John F. Allgood

Immediate Past Chair
Emory Speer Mabry III

Members at Large
William B. Barrickman
William Beringer
Cicely Breckenridge
Hala Carey
Terrence L. Croft
William S. Goodman
Halsey G. Knapp Jr.
David C. Nutter
Gregory T. Presmanes
Tanya Tate
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