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. 

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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.

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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.

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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.

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William B. Barrickman