ADR Tips Feb 2 2011

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ADR Tips Feb 2 2011 Powered By Docstoc
					Selection of recent ADR cases/articles, etc. from the net include…

         When an arbitration award must be confirmed by the Legislature.
         Scope of Confidentiality in Mediations challenged!
         Recorded CC&Rs do not give rise to an agreement to arbitrate!
         Electronic Stored Information (ESI) for/in (International) arbitrations
         Tip-of-the-Month!
         Speaking engagements
         And more…!




(And, the financial impact was not noticed by the court?—ed)

Where arbitrator ruled, based on extrinsic evidence, that state agency and employee union
intended for MOU to retroactively confer safety member retirement service credit on
certain employees, but legislation approving MOU was silent as to whether the change
would be retroactive, and legislature never considered the fiscal consequences of
retroactivity, arbitrator's ruling in favor of retroactivity was contrary to public policy and
must be vacated.
    California Statewide Law Enforcement Association v. California Department of
Personnel Administration - filed January 26, 2011, Third District
    Cite as 2011 S.O.S. 511
    Full text California



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(Scope of Confidentiality in Mediations challenged! California Supreme Court rules on
the subject—ed)

Attorney-client communications in connection with a mediation were inadmissible in
client’s malpractice action against attorneys based on their representation of him at the
mediation unless the confidentiality of a particular communication was expressly waived.
All discussions conducted in preparation for a mediation as well as all mediation-related
communications that take place during the mediation itself are protected from disclosure,
even if these do not occur in the presence of the mediator or other disputants.
Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, L.L.P.) - filed
January 13, 2011 Case is available at Cassel

_____________________________________________________________________


 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.
(Recorded CC&Rs do not give rise to an agreement to arbitrate!—ed)

Recorded declaration of covenants, conditions, and restrictions, which purported to
require that a homeowners association arbitrate any construction defect claim the
association might have against the developer, did not--under either state or federal law--
create an enforceable agreement to waive judicial remedies.
   Villa Vicenza Homeowners Association v. Nobel Court Development, LLC - filed
January 11, 2011, Fourth District, Div. One
   Cite as D054550A
   Full text at Villa
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Recent guidance/suggestions on Electronic Stored Information (ESI) for/in arbitrations…
“The Seven Point System: Managing the Risks and Costs of Preserving and Producing
Electronically Stored Information in International Arbitration.” Available at
MayerBrown

And, related thereto is the International Bar Assn. noticed its revised IBA Rules on the
Taking of Evidence in International Arbitrations at IBA

Furthermore, “How Resort to US Courts—with US Discovery—Can Backfire on a US
Party to an International Arbitration,” is available at WhiteCase


Tip-of-the-Month!

“Arbitration was held more than a year ago. No award has been rendered after exhaustive
briefing and testimony. No AAA, CPR, or JAMS rules. No governing rules.”

What do you think?

Is there an “arbitration?” Assuming you have an arbitration, look at the prelim order (it
should have stated the applicable rules by implication or...?) or look at local arbitration
statutes. Otherwise a joint letter by counsel to the arbitrator(s) may trigger some action
but some parties may be predisposed to not want an arbitral award...whenever it may
come! A letter asking about the closing of the hearing and when the award can be
expected thereafter is not inappropriate...and perhaps stating it is normal for 30 days (cite
other arbitral rules, e.g. AAA Commercial Rule 41, www.adr.org ) or perhaps what is
"reasonable" after the closing, again, e.g. 30 days...but put in a time certain in the letter.

If the hearing has closed and the time for award has expired, the arbitrators "normally" do
not have any further jurisdiction and a late award will cause more litigation.

Some parties have requested for refund, etc. when a late award was purportedly issued,
e.g. one day late!
 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for          2
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.
_____________________________________________________________

Future Speaking Topics Include—

   Jacksonville, Florida NCMA Chapter, National Education Seminar,
    "Risk Management for Complex U.S. Government Contracts and Projects."

   San Fernando Valley Institute for Supply Management, “How to Negotiate Fair
    Prices in Sole Source Procurements!"

   Orange County, California NCMA Chapter, “Is the FAR Out of Control?”

   Huntsville, Alabama NCMA Chapter, National               Education Seminar,
    "Risk Management for Complex U.S. Government Contracts and Projects."


                     Information on speaking engagements in connection with various aspects of
                  Alternative Dispute Resolution (ADR) and basic/advanced negotiation techniques
                                                 — seminars/workshops—
                         may be arranged by sending a message to ADROffice@Rumbaugh.net




 Items summarized in these ADR Tips are collected/compiled from various Internet sources—except as noted—and are for          3
general informational/discussion/educational purposes only and should not be relied upon in the course of representation or
                  in the forming of decisions in legal matters—independent counsel should be obtained.

				
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