California Mediation and Arbitration

Arbitration/Public Policy Exception: SingerLewak v. Gantman Is Ordered Published

A Circuitous Route To Publication.

     I posted about SingerLewak v. Gantman on July 31, August 31, and September 1, 2015.  This is an interesting case discussing the so-called “public policy exception” that will sometimes justify review of an arbitral award by the superior court – though in the end, not in this case.

    Previously, the Court of Appeal had ordered the case published in the morning, only to revoke the publication order in the afternoon, when it realized that the time to order publication had expired.  The Justices then wrote a letter to the Supreme Court asking for publication.  Yesterday, the Supreme Court ordered publication.

  Ted Bacon, Mike Hensley, and Matt Hansen, my colleagues at AlvaradoSmith, represented SingerLewak, the appellant/plaintiff prevailing on the appeal.  I was pleased to see publication was ordered, as I had written the letter to the Court of Appeal requesting publication.

More On Mediation Confidentiality

California Law Revision Commission Revisits Mediation Confidentiality At Its October 8, 2015 Meeting.

     I have previously posted about efforts to permit the introduction of evidence currently protected by mediation confidentiality.  See my posts of August 30, 2015, and September 11, 2015.

     The California Law Revision Commission met on October 8, 2015, to address the issue again.  As of the date of this post, I have not been able to find minutes or a video recording of the meeting.  However, I am informed that the CLRC has decided to proceed with drafting legislation to remove current confidentiality protections when misconduct is alleged as to a lawyer acting in the role of advocate (as opposed to a lawyer acting as a mediator).  An earlier decision to draft legislation allowing in mediation communications when attorney mediator misconduct is alleged has apparently been reversed.  The ongoing proceedings of the CLRC on mediation confidentiality may be followed at:  http://www.clrc.ca.gov/K402.html

Another Look at Mediation Confidentiality:  Does It Serve Its Intended Purpose?

     Eric van Ginkel, mediator, arbitrator, and adjunct professor for the Strauss Institute for Dispute Resolution, has published an article in Vol. 32, No. 8, September 2014, Alternatives to the High Cost of Litigation, a monthly publication of the International Institute for Conflict Prevention and Resolution.  The article provides a framework for analyzing the purpose of mediation confidentiality by considering the varieties of mediation confidentiality, the interests of the mediator, the parties, and non-parties in preserving confidentiality, and the need for confidentiality before and after a settlement is reached.  Prof. van Ginkel is a fan of the Uniform Mediation Act, which he describes as “approaching Nirvana” compared to the California mediation statute.  A summary of his article is available on-line at pages 4 to 7 of a recent memo prepared by the CLRC. 

     COMMENT:  Much of the debate concerning whether to legislate exceptions to mediation confidentiality circles around whether a bright-line confidentiality rule that may be harsh in an individual case by excluding evidence of malpractice or duress nevertheless offers widespread and beneficial effects by facilitating candor, trust, and low transaction costs. 

     When things good sideways in mediation, we are tempted to look only backwards at the confidentiality rules, and ask ourselves how a different confidentiality rule could right the wrong.  When we ask ourselves about the beneficial effects of mediation confidentiality, we generally have a different perspective:  we are looking at the benefits of candor, trust, and low transaction costs before the problem occurs in the individual case.  “The practical challenge is to learn to see [ex ante] argument every time it’s available:  to learn to think the ex ante way when a case is full of cues tempting everyone to only look backwards.”  See Ward Farnsworth, The Legal Analyst:  A Toolkit for Thinking About the Law (University of Chicago Press 2007), p. 6.  Interestingly, Prof. van Ginkel notes:  “To date, no study has been undertaken that would give us the empirical data that connects success in mediation proceedings with the availablity of a form of confidentiality protection.”  We have insights into the value of mediation confidentiality, and a dearth of empirical evidence. 

Arbitration, Class Actions, Waiver: DIRECTV v. Imburgia Arguments Heard By Supreme Court On October 6, 2015

ScotusBlog Analyzes Oral Argument Under Caption, “Justices have scorching criticism for California court’s refusal to enforce arbitration agreement, but debate their authority to correct it.”

     Columbia Law Professor Ronald Mann has authored both an October 2, 2015 preview of arguments in DIRECTV v. Imburgia and an October 7, 2015 analysis of the oral arguments. 

     In his preview, Professor Mann leads: “If I start by telling you that DIRECTV includes an arbitration clause in agreements with its customers and that the California Court of Appeal in this case declined to order arbitration, it would be understandable if you immediately stopped reading and clicked back to look for another post: how far do you have to read to expect that my post is going to tell you that the Court is likely to reverse the California court and hold the agreement enforceable?” 

     In DIRECTV, the arbitration provisions contain a poison pill: “if the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire [arbitration provision] is unenforceable.”  What does “law of your state” mean? 

     The parties entered into the agreement when the Discover Bank rule applied in California, invalidating class action waivers, and before that rule had been overturned by AT&T v. Concepcion.

     The question, as presented by DIRECTV’s petition for writ of certiorari to the Supreme Court is: “Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.”

     Thus, DIRECTV’s position is simply that the California courts flaunt federal law and preemption.

     In contrast, Imburgia argues that this is a simple matter of contract interpretation:  whether the reference to “the law of your state” refers to the rule in Discover Bank, or to the state of the law in California after Concepcion.  Imburgia argues that contract interpretation should be left to state judges, and if the contract drafted by DIRECTV is ambiguous, then the well-known rule that ambiguous contracts are interpreted against the drafter must apply.

     Prof. Mann concludes, “[I]t seems unlikely that five of the Justices will vote to affirm the California decision.  But do we know exactly how they’ll explain their decision?  For that I suppose we’ll have to wait a few months yet.”

PAGA: Ninth Circuit Holds That Waiver Of Employee’s PAGA Claims Cannot Be Enforced

Panel Holds the Federal Arbitration Act Did Not Preempt The California Rule Announced In Iskanian.

     By a 2-1 majority, a Ninth Circuit panel has reversed a district court’s order that had granted an employer’s motion to compel arbitration of claims and dismissed claims for civil penalties under the Private Attorney General Act of 2004 (PAGA).  Sakkab v. Luxottica Retail North America, Inc., No. 13-55184 (9th Cir. Sept. 28, 2015).  Thus, the majority agreed with the rule in Iskanian v. CLS Transportation Los Angeles, LALC, 59 Cal.4th 348 (2014), barring the waiver of representative claims under PAGA.  The majority reasoned that the Federal Arbitration Act and Concepcion do not preempt the rule in Iskanian, because the California rule barring waiver of PAGA claims is a “generally applicable” contract defense preserved by the FAA’s section 2 savings clause.  Waiver of PAGA claims is barred, “regardless of whether the waiver appears in an arbitration agreement or a non-arbitration agreement.”

     However, the majority noted:  “The California Supreme Court’s decision in Iskanian expresses no preference regarding whether individual PAGA claims are litigated or arbitrated.”  Thus, while reversing the order below, the Ninth Circuit panel also remanded to the district court to decide where the plaintiff’s representative PAGA claims should be resolved.

      Judge N.R. Smith, dissenting, believes that Concepcion/FAA preemption should apply, that the FAA’s “liberal federal policy favoring arbitration” should have been followed, and that not enforcing the PAGA waiver provision crimps the parties’ ability to contract to the arbitration provision chosen.

     COMMENT:   In Concepcion, a Supreme Court majority has accepted an arbitration provision that results in waiver of class actions.  In Sakkab, the Ninth Circuit panel majority distinguishes between class actions and PAGA actions that are representative actions akin to qui tam actions in which the plaintiff acts as a proxy for the state.  Whereas class actions are not necessarily well-suited to arbitration, because an arbitrator may not be troubled to deal with the due process rights of third parties, a PAGA representative action involves obtaining penalties for the benefit of the state and the plaintiff, making it unnecessary to protect absent employees’ due process rights.

      I recently authored an article entitled, “Can Private Attorney General Actions Be Forced Into Arbitration?” that appeared in California Litigation, Vol. 28, No. 2, 2015.  You can find it here.  By remanding to the district court to decide whether the PAGA claims should be litigated or arbitrated, Sakkab clarifies that whether PAGA claims can be forced into arbitration is not the same question as whether PAGA claims can be waived.  Sakkab only holds the PAGA claims can’t be waived, leaving it to the district court to decide how the claims will be tried.