The California State Bar offers a useful collection of “Arbitration Advisories” that I wanted to share with my readers. These advisories come with the following disclaimer:
“Points of view or opinions expressed in this document are those of the Committee on Mandatory Fee Arbitration. They have not been adopted or endorsed by the State Bar’s Board of Trustees and do not constitute the official position or policy of the State Bar of California.”
2012-03 Handling Legal Malpractice Claims and Ethical Issues During Arbitration
Agreement Providing To Mediate Did Not Satisfy Burden of Showing Clear Intent of Tribe to Waive Immunity
Our next case, involving tribal sovereign immunity, does not fit into one of our convenient sidebar categories. Miller v. Wright, Case No. 11-35850 (9th Cir. Nov. 13, 2012) (Rawlinson, J.) (published). In Miller, a panel of the Ninth Circuit held that the Puyallup Tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures or by ceding its authority to Washington State when entering into a cigarette tax contract (CTC). The opinion describes the case as “the latest iteration of cigarette vendors’ challenge to taxes imposed by virtue of the authority vested in the tribe.”
A waiver of tribal immunity must be clear. C&L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418-419 (2001). In C&L, waiver of tribal immunity was clear, where a clause stated that contractual disputes should be resolved according to AAA Rules, the arbitrator’s award was to be enforced in accordance with applicable law in any court having jurisdiction, and the contract provided for Oklahoma choice of law. In contrast to C&L, no waiver occurred in Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d 801 (9th Cir. 2001). In Demontiney, the dispute resolution clause “did not ‘reference or incorporate procedures that provide for non-tribal jurisdiction for enforcement . . . ‘”.
The panel in Miller concluded that the facts were “more akin to those in Demontiney than to the facts in C&L.” Critically, the dispute resolution provision in Miller called for “mediation”, not “arbitration”, and mediation “generally is not binding and does not reflect an intent to submit to adjudication by a non-tribal entity.”
BLAWG BONUS: Objections to a tobacco tax are nothing new. See the print below, dating from 1790, and the explanatory note.
“A British satire on efforts by William Pitt, George Rose, and some members of Parliament to impose new "Excise" duties on tobacco (cf. Tobacco Excise Bill). The additional tax burden on British citizens is implied by the image of a bull, muzzled and blindfolded, with legs chained to a stump, being harassed by dogs (depicted with heads of members of Parliament). Edward Thurlow, also shown as a dog, registers his opposition to these "New Excise Fetters for John Bull" by urinating on tobacco leaves. Among the members of Parliament depicted are: William Wyndam Grenville, Henry Dundas, Charles Lennox Richmond, Charles Jenkinson, Richard Pepper Arden, Sir Charles Pratt Camden, and possibly Francis Osborne Carmarthen.” James Gillray. 1790. Library of Congress.
In a March 18, 2012 post, we spoke of “the sheer ingenuity of the anonymous attorney who drafted the arbitration clause at issue” in AT&T Mobility v. Concepcion. After poking around the web a bit, we learned that the “anonymous attorney” is actually Archis Parasharami, a partner at Mayer Brown.
In a May 28, 2012 opinion piece in the National Law Journal, Andrew J. Pincus saw the precedent he had made, and, behold, it was very good. (Cf. Gen. 1:31 King James Version). Mr. Pincus is the attorney at Mayer Brown heralded for arguing and winning Concepcion before the Supreme Court in 2011. He laments that opponents of arbitration, motivated by “reflexive hostility”, are not capitulating. Instead, they are mounting attacks against arbitration in Congress and federal agencies.
Mr. Pincus expresses the argument in favor of arbitration in the strongest declarative terms: “Our courts are expensive, overburdened and virtually impossible for nonlawyers to navigate. For these claims, it is arbitration or nothing.”
We are pleased to inform our readers that as of May 23, 2012, California Mediation and Arbitration has been added to the ABA Journal’s blawg directory under the category “Alternative Dispute Resolution”.
We thank Sarah Randag, Web Editor of the ABA Journal, for informing us.
Mediator Robert Mann has an interesting article in the April 27, 2012 edition of the Los Angeles Daily Journal, under the heading, “Is bracketing dead? New strategies for mediation.” (Verdicts and Settlements section, p. 2).
“Bracketing” is the “dance of negotiation.” Each side comes back repeatedly with incremental changes in their bargaining position, insisting that “this time they really mean it.” Eventually the parties wear each other down (or not), and a grumbling settlement is achieved (or not). As the parties narrow the distance between the brackets, they come within a range of “magnetic attraction”, and (hopefully) come together to achieve a settlement.
Mr. Mann suggests that this process, so familiar to litigators and parties in a mediation, is wasteful and unpleasant, and that there are better alternatives. One alternative is for the mediator to confidentially elicit the goal each side desires, and if the parties are close, ask each side, separately, “If I could get you ‘x’ amount of money, would that be enough to settle this case?” This can lead to a “pre-sold mediator’s proposal.” Another approach is to spend time independently with each side, evaluating what it will take to settle the case for one side, then discuss with the other side in depth whether such a settlement makes sense. Mr. Mann believes such approaches are more efficient and less stressful and adversarial than the traditional dance of negotiation.
Such approaches depend a great deal upon the trust that the parties place in the mediator, and upon the confidence that the parties have that confidential information will truly remain confidential.
We suspect, however, that bracketing is far from dead.
Elihu Root Negotiated Some 40 International Arbitration Treaties
Elihu Root (1845-1937) was awarded the 1912 Nobel Peace Prize for his work in negotiating some 40 reciprocal international arbitration treaties and in promoting international cooperation. Root was a prototype for the twentieth-century “wise man” – enormously successful as a private attorney, he also accepted appointments from Presidents McKinley, Roosevelt, and Wilson. He is little remembered, though he had considerable influence in his own time. In addition to serving as US Attorney for the Southern District of New York, Secretary of State, Secretary of War, Senator from New York, and delegate to the Washington Naval Conference, he was also the first president of the Carnegie Endowment for International Peace.
Historical Perspective for the Privatization of Dispute Resolution
Last night we posted on Kilgore v. KeyBank, a March 7, 2012 Ninth Circuit opinion concerning the enforcement of an arbitration clause. Kilgore is part of the post-Concepcion trend (more like a juggernaut) to apply the Federal Arbitration Act and the Supremacy Clause so as to preempt state court efforts, grounded in public policy considerations, that would otherwise avoid enforcing arbitration clauses. This morning we read Prof. Amalia Kessler’s op-ed contribution to the March 6, 2012, NYT on-line edition, “Stuck in Arbitration.” Prof. Kessler’s contribution offers historical perspective to the use of private dispute resolution in the United States. Her contribution is also a pitch for proposed legislation, the Arbitration Fairness Act. Prof. Kessler is a professor of law and legal history at Stanford, working on a book about the origins of American adversarial legal culture.