Hot Topics in ADR ...reported by Betsy Chessler and Margot McLaren
John Van de Kamp was invited to speak at the 37th annual SCALL Institute to discuss recent legislation and cases concerning ADR (alternative dispute resolution). Mr. Van de Kamp has held a long and distinguished position in the legal and public service arenas. His areas of expertise include general business/commercial contract, employment, complex litigation, discovery reference, environmental/ toxic torts, franchises, legal malpractice, official misconduct and antitrust. He served as District Attorney for the County of Los Angeles from 1976-1982, and as the 28th Attorney General for California from 1983-1991. In his capacity as attorney general, he helped create the Public Rights Division, which focuses on antitrust, civil rights, environment, and consumer protection issues. Since 1993 Mr. Van de Kamp has served as an arbitrator and mediator. He is currently Of Counsel, Dewey & LeBoeuf LLP in Los Angeles.
The following questions regarding ADR were addressed:
Should binding arbitration be subject to judicial review?
Should confidentiality agreements be broken to allow testimony in court?
How should pre-dispute contracts be drafted?
In the federal system, judicial review is limited to allegations, fraud, corruption, and misconduct. In California law, should courts review the arbitrator's decision so that parties have an escape valve if they are dissatisfied?
Some judges may require that cases go to pro bono mediators. Mr. Van de Kamp is one of those mediators who hears cases a couple of days each week.
Mr. Van de Kamp made reference to a recent case, Simmons v. Ghaderi (July 21, 2008). In this medical malpractice case, Mr. Ghaderi agreed to settle verbally, but then rescinded in mediation. Waiver of confidentiality has to be explicit, not implied. As a mediator, Mr. Van de Kamp stated that he never writes settlement agreementshe lets the parties and their attorneys write them.
More information regarding the above case can be located at: http://www.thecomplexlitigator.com/2008/07/simmons-v-ghade.html
Contracts of adhesion were also discussed. A contract of adhesion may be defined as a contract whose terms are so imbalanced that one party is clearly favored over another to such an extent that the agreement could not possibly be freely bargained. Contracts of adhesion may include consumer contracts entered into when a consumer buys a product. Such terms are the subject of many consumer arbitration cases. The Searle Civil Justice Institute (SCJI) at Northwestern University School of Law has just released its in-depth study of consumer arbitrations.
The report is available at: http://www.searlearbitration.org/p/full_report.pdf.p>
Two pieces of federal legislation recently introduced restrict the use of pre-dispute arbitration clauses in a wide variety of contracts, the Arbitration Fairness Act of 2009 (HR 1020) and the Consumer Fairness Act of 2009 (HR 991). HR 1020 is the broader of the two bills; it would prohibit pre-dispute agreements involving consumers, employees, franchises, and civil rights laws. Companies oppose it because it would drive away international businesses. HR 991 would prohibit arbitration agreements in consumer contracts. Additional information is available in an ADRWorld.com article entitled, "Bills to Limit Arbitration Agreements are Reintroduced to Congress," by Justin Kelly.
Betsy Chessler is Law Librarian at Morrison & Foerster LLP in San Diego. She is currently Vice President of SANDALL.
Margot McLaren is Serials/Government Documents Librarian at Whittier Law School Library in Costa Mesa. She is currently a SCALL Board Member.
