Fellow Mediators Erica Bristol, Phyllis G. Pollack, and I Participated On Panel.
Above: President Roosevelt and party visiting Old Franciscan Mission in Santa Barbara. 1903. Library of Congress.
On November 10, 2016, I had the pleasure of participating in a panel with fellow mediators Erica Bristol and Phyllis G. Pollack in Santa Barbara.
Phyllis G. Pollack is the principal of PGP Mediation and past chair of the California State Bar ADR Committee. Phyllis spoke about California Law Revision Commission activity aimed at revising mediation confidentiality in California. She recited the recent history of mediation confidentiality, beginning with Cassel v. Superior Court, 51 Cal.4th 113 (2011), the California Supreme Court case strictly enforcing mediation confidentiality. Phyllis discussed the Law Revision Commission’s in-depth study about creating an exception to mediation confidentiality for evidence proving or disproving professional misconduct or malpractice by an attorney advocate where the misconduct occurs in the context of the mediation.
Phyllis suggested that if mediation confidentiality is loosened up in California, lawyers who represent clients in mediation will be more exposed to malpractice claims arising out of mediation. If in fact this happens, we could see malpractice premiums for policies covering mediators become more expensive. She also suggests that courts could become burdened with new cases, new discovery disputes, new protective order procedures, and requests for in camera proceedings.
Erica Bristol is a mediator and intellectual property attorney. She is the current Chair of the State Bar’s Litigation Section’s ADR Committee, and a principal of EB Resources Group. Erica discussed differences between the federal and state mediation privileges. The privilege exists in California and is enshrined in our Evidence Code, but the privilege varies in federal jurisdictions. One solution to the uneven application of the mediation privilege courts would be to create a federal mediation privilege in the Federal Rules of Evidence. However, unless that happens, attorneys practicing in federal courts need to consider jurisdictional privileges, give consideration about what information they can safely disclose in mediation, and inform their clients about the application of mediation confidentiality.
I suggested that President Elect Trump will impact the use of arbitration through the likely nomination of conservative Supreme Court justices, because the conservative wing of SCOTUS has been very willing to enforce arbitration agreements, whereas the liberal wing of SCOTUS has been more critical of the use of arbitration to resolve disputes.
I spoke about arbitration in the context of IP disputes. I noted that IP patent, copyright, trademark, domain name/cybersquatting disputes, and license disputes may be susceptible to arbitration. Numerous arbitral bodies exist for arbitrating IP disputes, including WIPO (the World Intellectual Property Organization and Mediaiton Center), the Hong Kong International Arbitration Centre, and the organizations familiar to us here, including the AAA, ADR Services, JAMS, and JudicateWest.
I discussed the application of the Federal Arbitration Act, “gateway issues,” the application of delegation clauses that determine whether a judge or arbitrator decides arbitrability, class arbitration, stays, incorporation of arbitral rules in the arbitration agreement, and the use of click wraps to bind persons using the internet to arbitration agreements. While case law cannot be overlooked, the best way to begin to analyze most arbitration issues in a dispute is with copies of the arbitration agreement, the rules of the arbitral organization, the Federal Arbitration Act, and The Rutter Group treatise on ADR.
Sometimes I stumble across a case having nothing to do with the subject of this blog, yet I feel compelled to share. “The principal issue in this case is whether a statement made by a ‘slightly unhinged’ character in a motion picture, American Hustle (Columbia Pictures 2013), was made ‘in connection with a public issue or an issue of public interest’ within the meaning of the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ.Proc., § 425.16, subd. (e)(4).)1 We hold that it was . . . “ The case arises out of a statement made in the movie American Hustle by the character Rosalyn, who said she had read an article by Paul Brodeur claiming that microwave ovens take the nutrition out of food. Mr. Brodeur was not amused, and sued for defamation. Spoiler alert: “ditzy” may be the dispositive word in the opinion. Brodeur v. Atlas Entertainment, Inc., (2/8 June 6, 2016) (unpublished).1 Enjoy.
The reason I post on this case is I thought it a curiosity, for those of use who do not practice in the area of union negotiations, that the California Labor Code, sections 1164 et seq., enables a process of “mandatory mediation and conciliation” (MMC) between a union, such as the United Farm Workers (UFW), and an agricultural employer, that is a binding process, in which the “mediator” takes evidence, hears arguments from the parties, and submits a “report” to the Agricultural Labor Relations Board. This is a rather specialized application of the term “mediator”!
Above: Interview with Cesar Chavez. April 20, 1979. Library of Congress.
Held: Section 1164.9 is unconstitutional, because it divests the Superior Court of its original jurisdiction, even though there is no “other constitutional provision that would expressly or impliedly grant to the Legislature the power to divest the superior court of its original jurisdiction in such matters.”
Removing the obstacle of section 1164.9 is not the end of the matter. Instead, the Court remands to the trial court so the Board will have an opportunity to assert procedural and other defenses, and to more fully develop the record. Having corrected legal error committed in the trial court, the Court of Appeal’s work is done – for now.
In a March 29, 2016 post, Debra Cassens Weiss, writing for the ABA Journal, quotes the esteemed appellate judge Richard Posner: “The first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.” We assume that Judge Posner does not generally favor book bonfires, which have a bad name, but this pinpoint attack is likely to resonate with many of us who labor at brief writing, and not-so-brief writing.
Ms. Cassens also notes that Judge Posner “has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.” Can I get a copy?
Among other legal reforms proposed by Judge Posner are creating a uniform system of lawyer pay (a “single payer” system) to even up disparities in the quality of representation, appointing neutral experts in cases involving difficult technical issues, providing jurors with transcripts that can be read along with testimony, and allowing judges to do Internet research (provided lawyers can contest the results).
From Queen Padmé Amidala To Ruth Bader Ginsburg . . .
Every now and then we get the irresistible urge to blog about something that has nothing whatsoever to do with mediation and arbitration. Today, the “off topic” item comes from Amy Howe’s Monday round up on SCOTUSblog, reporting Natalie Portman is about to take on the role of another powerful woman:
“Perhaps the biggest Court-related news at the end of last week was that actress Natalie Portman will play Justice Ruth Bader Ginsburg in a movie about Ginsburg’s career as an advocate for women’s rights. Coverage comes from Lily Karlin and Sam Levine in The Huffington Post, from Andrea Towers for Entertainment Weekly, and from Deadline Hollywood.”
Jill Lepore, Professor of American History at Harvard, has written a fascinating article in the January 26, 2015 edition of the The New Yorker. Her subject, which interests and plagues every blogger, is archiving the Internet before the information vanishes into cyberspace.
If you have been reading this blog, or the other blog to which I contribute with my colleague Mike Hensley, California Attorney’s Fees, or any other blog, you are familiar with the problem. All the hyperlinks degrade over time and become useless. You click on a hyperlink, and you get an annoying message: “Page Not Found” (“link rot”). Or the page has been overwritten. Or the page has moved, and something else appears in its place (“content shift”). These are examples of “reference rot.”
This problem should be of particular concern to attorneys, because an astounding number of legal footnotes relying on web addresses now rely on invalid addresses, a problem that includes footnote references in SCOTUS opinions.
The sheer petabyte volume of Internet information makes the archiving problem a Sisyphean task. There are, however, some constructive efforts to ameliorate the problem.
There is, of course, the famous internet archive “Wayback Machine,” a valuable Internet resource for people searching for old information on the Internet. “Wayback Machine” alludes to Mr. Peabody and Sherman’s fictional “WABAC Machine”, allowing time travel through Peabody’s Improbable History, a feature of the Rocky and Bullwinkle show.
There is also a nifty patch, currently in Beta development phase, for the legal footnote problem. Perma.cc has been developed by the Harvard Library Innovation Lab as a way to create a permanent link (“permalink”) for legal footnotes. Perma.cc is powered by various libraries, and now used by the Michigan Supreme Court, as well as the Harvard Law Review. A Perma.cc account allows you to “create links to archived versions of web pages cited in your work.” Cool!
Even Perma.cc won’t guarantee that the permalink it creates to reference a source will last as long as a diamond. However, Perma.cc does claim that a permalink will last for two years, with the possibility of renewal, and that it may last longer for a person, such as a legal librarian, who is given “vesting rights.”
I note that most of the links on my blog are to newly filed California appellate opinions. Those links become stale after a few months. However, if the case is of lasting interest, you should be able to find it on LexisNexis, on Westlaw, or on Google Scholar with the case information provided in my post.
HAT TIP to Deborah Tint, librarian, artist, and Wonder Woman fan, who pointed me to Jill Lepore’s article. Professor Lepore is also the author of the wonderful new book, The Secret History of Wonder Woman.