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The Ohio State Journal on Dispute Resolution, in collaboration with the Moritz College of Law's Program on Dispute Resolution, is pleased to bring you Volume 15, Issue 3, of the Mayhew-Hite Report on Dispute Resolution and the Courts.

The New York Times Attack on Arbitration: Series highlighted abuses — but also ignored arbitration’s many advantages*

By David B. Lipsky**

Critics of arbitration have never been in short supply, but in recent years both their number and the intensity of their attacks seem to have increased significantly. Emblematic of the contemporary skepticism about arbitration was a three-part series published in the New York Times late last fall. In this article I will examine the principal arguments made by the Times reporters and attempt to provide a more balanced picture of the pros and cons of arbitration.

In my view, the Times should be applauded for focusing a major series on an important topic that far too often is ignored by the media. For those of us who favor the use of arbitration to resolve disputes, the Times’ attention to the deficiencies in the contemporary practice of arbitration serves as a warning that we need to be diligent in rooting out the abuses and injustices that critics have identified. At the same time, however, in my judgment the Times series is a seriously biased and one-sided attack on a dispute resolution technique that, when properly designed and administered, has proven itself to be an effective method of resolving disputes that might otherwise be costly, time-consuming, and emotionally difficult.

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ARTICLE SUMMARY

Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count

Christian George

Arbitration is a useful and efficient dispute resolution process available to parties who engage in commercial transactions. But business reliance on arbitration has recently been on the decline. The increasing perceived risk of “arbitrator compromise and the inability to appeal adverse arbitration awards to court” are factors driving the decline in reliance on arbitration.[1] The fear of an arbitrator making an unexpected decision has caused many businesses to forgo the benefits of arbitration and use less effective dispute resolution methods. Professor Sarah Rudolph Cole proposes a solution to ease the uncertainty many business leaders in her article Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count. Cole proposes changing the standard of review for arbitrator decisions to a clear and unmistakable standard requiring arbitration on issues that the parties clearly and unmistakably indicate they wish to arbitrate[2] and then using the judicial review process to ensure that the parties' wishes are respected.  Limiting deference to the arbitrator in these situation should allay the fear of the “runaway arbitrator.”[3]

Professor Cole begins her article by discussing the origins of arbitration. Placing arbitration in its historical context, she is able to focus on arbitration’s purpose. Cole claims that arbitration arose out of the need for businesspeople to find quick solutions to minor disputes in accordance with customary norms.[4] The end goal was to allow merchants to have the “swift results the parties desired” through a mechanism that was self-enforcing because of the merchants’ desire to maintain their reputations and preserve business relationships.[5] The “informal marketplace sanctions” that are enforced through the need to have business relationships became less effective as economic markets began to expand and commerce grew, bringing with it increased impersonal business deals. The increase in impersonal business relationships led to a business marketplace that required legislative action to protect business dispute resolution choices.[6]

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CASE SUMMARY

Wexler v. AT&T Corp–denying a motion to compel arbitration

Alexander Pribil

In October 2008, Eve Wexler purchased an iPhone and wireless service via AT&T Mobility’s (Mobility) website.  The online transaction required Wexler to check a box acknowledging she read Mobility’s Service Agreement.  Wexler did not deny she placed the online order—but Wexler denied accepting the Service Agreement.[1]

Beginning in October 2014, AT&T (Mobility’s parent company) began sending unsolicited text messages and making unsolicited phone calls to Eve Wexler’s phone.  Frustrated with AT&T, Wexler filed a punitive class action claim in U.S. District Court for the Eastern District of New York under the Telephone Consumer Protection Act.[2]  AT&T and Mobility (collectively, Defendants) moved to compel arbitration pursuant to Wexler’s cell phone Service Agreement with Mobility.  This case summary reviews the District Court’s denial of the Defendants’ motion to compel arbitration.

The Service Agreement included the following arbitration clause:

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HEADLINE NEWS

  • Nolan-Haley Focuses on Consent at 2017 Schwartz Lecture

    On March 9, 2017 Fordham Law Professor and director of Fordham's ADR & Conflict Resolution Program, Jaqueline Nolan-Haley delivered the 2017 Schwartz Lecture on Dispute Resolution.  Titled, Access to Justice, ADR and the Erosion of Consent, Professor Nolan-Haley discussed how alternative dispute resolution processes have been promoted as efficient tools to improve overburdened court systems and to secure access to justice and explored the erosion of consent in ADR processes and offer some reflections on how we should respond.

    During her presentation she identified how alternative dispute resolution was designed to increase access to justice and was designed as a better alternative--not a replacement--for a court decision.  She identified how consent in alternative dispute resolution has withered over the past four decades.  She emphasized "consent is a universal value that still matters to people" engaged in alternative dispute resolution process.  Prof. Nolan-Haley concluded her remarks encouraging law students and practitioners to focus on consent as a core value of dispute resolution.

    Prof. Nolan-Haley's lecture will be featured in a forthcoming edition of The Ohio State Journal on Dispute Resolution. 

    Pictured above: JDR editor-in-chief Brooks Boron, Moritz Prof. Sarah Cole, Schwartz Lecturer Jacqueline Nolan-Haley & Moritz Dean Alan Michaels

  • Moritz Teams Thrive in Regional Mediation Competition

    Congratulations to Maggie Flood, Jana Al-Akhras, Alyssa Williams and Courtenay Balvin who placed third and fourth, respectively, at the ABA's regional representation in mediation student competition.  Michigan State graciously hosted the regional contest on March 24-26, 2017.  Longtime coaches Marya Kolman and Dottie Painter supported the teams in their competition preparation efforts.  Great work!

     
  • OSU’s Grande Lum Headlines Harvard Symposium

    On February 17, 2017, Divided Community Project Director Lum delivered the keynote address of the Harvard Negotiation Law Review’s 22nd Annual Symposium, “Reflections on the Intersection of Alternative Dispute Resolution and Activism.”  An article featuring Director Lum's address is available here.  A video of Director Lum's Keynote address is available here.

  • Deason AALS ADR Chair-Elect

    Congratulations to Moritz Prof. Ellen Deason on her recent selection as American Association of Law Schools Alternative Dispute Resolution Chair-Elect.  Pace Law Prof. Jill Gross is the current section chair.  Prof. Deason will work with ADR colleagues from across the country to organize dispute resolution events and support dispute resolution scholarship.  For more information take a look at this blog post on Indisputably (Prof. Sarah Cole is a co-blogger).

EDITOR'S CORNER

Welcome to the third issue of the Mayhew-Hite Report for 2016-17. The theme of this issue is arbitration. I'm your editor, Ben Cahn.

Our third issue presents one featured article. Cornell Professor David B. Lipsky’s The New York Times’ Attack on Arbitration discusses a series published by the New York Times on October 31, November 1 and November 2, 2015. The series discussed arbitration, and perceived shortcomings of the arbitration process. Professor Lipsky responds explaining that he hopes to provide in his article a more “balanced picture of the pros and cons of arbitration.” Lipsky’s article was originally published in the Summer 2016 issue of the ABA’s Dispute Resolution Magazine.

The article summary, by Christian George, current staff editor for the Ohio State Journal on Dispute Resolution, and next year’s Editor-in-Chief, focuses on the article Curbing the Runaway Arbitrator in Commercial Arbitration: Making Exceeding the Powers Count by OSU Moritz Professor Sarah Rudolph Cole. Christian previews Cole’s discussion of the recent drop in business reliance on arbitration, including her analysis as to the factor’s that have contributed to this drop, and how to reverse this trend.

The case summary, by Alex Pribil, current board member on the Ohio State Journal on Dispute Resolution, focuses on the case Wexler v. AT&T Corp., No. 15-CV-0686, 2016 WL 5678555 (E.D.N.Y. Sept. 30, 2016). Alex’s case summary delves into the use of arbitration clauses in service agreements, and efforts by large corporations (in this case AT&T) to compel arbitration. Alex takes a look at the relationship between the breadth of an arbitration clause and the willingness of a court to compel arbitration.

Lastly, the student spotlight presents Elizabeth Erin Oehler’s student note drafted for the Ohio State Journal on Dispute Resolution. Elizabeth’s note, Working With People Who Have Personality Disorders in Mediation, argues that mediators should expand their knowledge and skillset so that they can work more productively with individuals who have personality disorders. Elizabeth’s note gives mediators a starting point for gaining knowledge in this area.

Don't forget to take a look at the Headline News from Moritz's Program on Dispute Resolution, and feel free to email me with any comments or suggestions at cahn.7@osu.edu.

STUDENT SPOTLIGHT

Working with People Who Have Personality Disorders in Mediation

Disclaimer: The following article has been reviewed by the Mayhew-Hite Editor. Articles published in the Mayhew-Hite Report do not undergo the same rigorous accuracy check or editing process as articles published in the print edition of the Ohio State Journal on Dispute Resolution. 

Elizabeth Erin Oehler

I. Introduction

It is essential that mediators expand their knowledge and skillset in order to work productively with a wide range of diverse individuals. Currently, there exists very limited literature and guidance for mediators on how to best interact with people who have personality disorders. The Mayo Clinic defines a personality disorder as “a type of mental disorder in which [someone has] a rigid and unhealthy pattern of thinking, functioning and behaving.”[1] Around 9% of adults, about 22 million people[2], in the United States live with a personality disorder.[3] Of the people living with a personality disorder, many of them do not seek treatment because they are unaware of the presence of their disorder.[4] In fact, a study conducted by the National Institute on Mental Health found that only 39% of those with a personality disorder received treatment for mental health issues or substance abuse within a year’s time of responding to the survey.[5]

Due to the prevalence of personality disorders, most mediators, if they have not already, will find themselves working with someone who has a personality disorder. And, from time to time, every person exhibits “some elements of these character types, particularly when under stress.”[6] This note provides a basic overview of the different groups, or “clusters”, of personality disorders and suggests how a mediator can adjust a mediation session to assist in issues that may arise. Although not fully comprehensive, this note gives a starting point for those mediators who wish to gain knowledge in this area. The bulk of the note is divided into two parts: Part II and Part III. Part II introduces the different clusters of personality disorders and describes, in more detail, a few specific personality disorders. Part III argues that the techniques and methods used in psychotherapy should be applied during mediation sessions and provides several practical ways the mediator can use these methods to enhance the mediation session.Read more

MORITZ ADR LINKS

Moritz Program on Dispute Resolution

Widely regarded as one of the nation's finest programs in the area of Alternative Dispute Resolution, the Moritz ADR program was established in recognition of the need for future lawyers to be trained in an array of dispute resolution methods beyond litigation, including negotiation, mediation, and arbitration. [Program Home]

Ohio State Journal on Dispute Resolution

The Ohio State Journal on Dispute Resolution ("JDR") is a student-initiated, student-run publication and is the official law journal of the American Bar Association's Section on Dispute Resolution. [JDR Home]

The Caucus

The Caucus is a monthly e-newsletter that highlights the scholarship and accomplishments of the Moritz Program on Dispute Resolution faculty and students. [The Caucus Home]

Indisputably

Indisputably is a blog operated by law professors from around the United States concentrating on issues involving dispute resolution. [Indisputably Home]

Bridge Initiative @ Mershon and Moritz

The Bridge Initiative, which combines resources from Moritz College of Law and the Mershon Center for International Securities Studies, is an indispensable resource for those doing research in issues involving dispute resolution. [Bridge Initiative Home]

Contact US

Ohio State Journal on Dispute Resolution
The Ohio State University
Moritz College of Law
55 West 12th Avenue
Columbus, Ohio 43210-1391
(614) 292-7170
osu-jdr@osu.edu

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391