ADR CASE LAW UPDATE

1. INTRODUCTION AND OVERVIEW
2. PRELIMINARY MATTERS
Arbitration
1. Enforcement of Arbitration Agreements
2. Arbitrability
3. Waiver of Arbitration Provisions
4. Courts or Arbitrators
5. Parties Mandated to Arbitrate
6. Selection of the Arbitrator

Mediation
1. Enforcement of Order
2. Sanctions
3. THE ADR SESSION ITSELF
1. ARBITRATION
2. MEDIATION
3. Unauthorized Practice of Law Issues - Arbitration & Mediation
4. POST ADR MATTERS
1. ARBITRATION
2. MEDIATION
5. MATTERS PERIPHERAL TO THE ADR PROCEEDING
1. Confidentiality
2. Regulation of Neutrals

Notes

As the use of ADR (alternative dispute resolution) expands and becomes integrated within the legal system, the influence of that very system on the dispute resolution processes is quite clear. Although ADR procedures, and particularly mediation, are often viewed as processes very different from that of litigation, as parties participate in ADR after a lawsuit if filed, as opposed to prior to filing, the courts involvement in the proceeding is sensible if not necessary. Courts may exert their influence upon ADR processes at a number of points throughout the procedures, which at least in part, has led to inconsistent results and a partial blending of the legal system with its alleged alternate.

Part of the difficulty in the mixing of less or non-adversarial processes within an adversarial paradigm, is the contradiction in not only approaches, but also underlying philosophies. Lack of familiarity on the part of decision-makers also compounds the problem. For example, courts and legislatures have been faced with dealing with some of the issues surrounding ADR use, without, for the most part, the benefit of experience or even a theoretical background in these matters.

Also contributing to inconsistencies is the fact that this area of practice is likely in a greater state of flux than others, such as litigation which has had the time to develop standards of practice - though admittedly nothing in the law is constant. But as new approaches evolve, there is greater tendency for variations to occur. Another part of the difficulty is that ADR experts themselves tend to differ in their view of ADR practice and the appropriate role of law therein. Nonetheless, the last decade has certainly seen a growth in the number of cases dealing with ADR topics, and undoubtedly this trend will continue. This paper deals with the most recent cases, and when cases are scant, may touch on the statutory law governing the proceedings. And while the focus here is on Texas law, some of the federal cases, both Fifth Circuit, along with a national perspective, will be included. I also note that much of the Texas law may be pre-emplted by the Federal Arbitration Act, although the applicability of law may also be the subject of the parties' contract.

And while this paper's emphasis is on Texas cases, I would be remiss to not also briefly examine some cases from across the nation, particularly as additional uniform laws are being considered and enacted. For what ultimately occurs in Texas will also be, at least in part, impacted by the additional coordinated activity on a national basis, including the efforts to draft a Uniform or Model Mediation Statute and the forthcoming amendments to the Uniform Arbitration Act. I will also include a briefly report on the progress of both the creation of a Model or Uniform Mediation Statute and the Amendments to the Uniform Arbitration Act (UAA). No doubt the awareness of these developments will influence Texas, just as it did nearly twenty years ago during the initial implementation of ADR within the courts. And as the practice of law becomes more inter-state as well as international, it is important to be aware of the general holdings in other jurisdictions. Moreover, because of the novelty and relatively inconsistency in the cases and approaches, it is important to check in each jurisdiction to determine the specific law - on a given day.

The case law is not particularly limited to construction matters as other types of cases tend to utilize ADR as well. In addition, the development of legal parameters governing arbitration and mediation have somewhat different histories as well as theoretical bases; therefore, I will examine each general topic as to both arbitration and mediation, addressing each separately. And while arbitration has enjoyed a long and generally favorable past within construction matters, it appears that many of the more recent contracts are including "step ADR clauses"; that is, where the parties either should or must attempt resolution through another process prior to resorting to arbitration. Thus an understanding of the requirements for mediation will often be of significance in the utilization of arbitration.

And although I recognize that other ADR processes are also being used, some with increasing frequency, at this point in time, most of the case law within Texas has been in the context of mediation or arbitration. (Excepting of course, the federal matters concerning both settlement conferences generally, and the use of the summary jury trial.) I will add, however, that state courts in Dallas county have increased the use of the Summary Jury Trial as well, and do predict that as the practice of ADR becomes increasingly sophisticated, we will see and expansion of the use of the other processes, such as neutral case evaluation.

In addition, as noted in many of the cases, should the parties desire, Texas state law will be pre-empted by the Federal Arbitration Act. For a very detailed recent review of this doctrine, see Allied-Bruce Terminex Cos v. Dobson, 513 U.S. 265, 115 S. Ct. 834 (1995). In fact, in several of the cases alternative claims of governance of the FAA (Federal Arbitration Act) and the Texas General Arbitration Act (TGAA) were made. Thus, one should be familiar with both the federal statute as well as the TGAA, found at Chapter 171 of the Texas Civil Practice and Remedies Code. Moreover, note that the National Conference of Commissioners on Uniform State Laws (NCCUSL) is in the process of revising the Uniform Arbitration Act. When (and whether) this will effect the TGAA is yet to be seen. Finally, although the title is ADR case law update, and will look primarily to cases, in instances where it has not yet developed, I will mention the pertinent statues and suggest perusal of court rules as well.

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