Margaret Huff Mediation
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ADR Resources: News/Reports

ADR News and Reports, a selection of ADR news and reports of interest to Tennessee attorneys, mediators and arbitrators by Marnie Huff

new - ADR Caselaw Update by Marnie Huff (last update: December 2015)
more postings:
  • TEAM Act:  Tennessee TEAM Act established a new employee grievance system.  Although the statute iteself does not explicitly provide for mediation, a mediation process was esstablished by regulation.  On October 12, 2012 Tennessee's new mediation regulations went into effect See also theTEAM mediation fact sheet and mediation brochure issued by the Tennessee Dept. of Human Resources and Tennessee Center for Workforce Relations.
  • IRS Revenue Procedure 2014-63, regarding mediation with the IRS was published on December 29, 2014 in Internal Revenue Bulletin 2014-53at pages 1014-22. Rev. Proc. 2014-63 expands and clarifies the types of examination and collection cases, and issues in the IRS Appeals administrative process, that are eligible for mediation under Section 7123(b)(1) of the Internal Revenue Code. IRS Appeals Officers trained in mediation serve as mediators at no cost to the taxpayer. A taxpayer has the option of paying for a qualified non-IRS co-mediator.
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ABA policy on pre-dispute arbitration clauses in nursing home admission contracts.  At its 2009 Mid-Year Meeting the American Bar Association adopted Resolution 111B.  It is now the ABA's official policy to support "the enactment of federal, state, and territorial legislation and regulations that oppose the use of mandatory, binding, pre-dispute arbitration agreements between a long-term care facility and a resident of such facility or person acting on behalf of such resident. 

ABA residential foreclosure mediation resources for ADR professionals.  The ABA Dispute Resolution Section's Mediation Committee's resource page provides information on foreclosure mediation legislation and programs across the United States.

Reporting Requirements for Rule 31 Mediators.  The Tennessee ADR Commission adopted the following policy:  "Effective January 1, 2008 all mediators listed pursuant to Supreme Court Rule 31 will be required to submit reports as prescribed by the Commission, regarding any mediation beginning on or after January 1, 2008 except as to matters pending in state courts outside of Tennessee and the Federal Court System.  Mediators will have 15 calendar days from the date of the last mediation session to submit the report to the AOC.  This policy does not affect any other reporting obligation required of a Rule 31 listed mediator."  It is noteworthy that this requirement for Rule 31 mediators applies to both court ordered mediations and non-court ordered mediations (sometimes referred to as "private mediations"). 

The link for submitting reports is www.tncourts.gov/Rule31Report (password required).

Appellate mediation rule in TN.  Tennessee Rule of Appellate Procedure on Appellate Mediation went into effect on July 1, 2009.  See additional information on the Margaret Huff Mediation website at ADR Resources: Appellate Mediation. 

AAA Amended RulesThe American Arbitration Association changed its Construction Industry Arbitration Rules and Mediation Procedures (effective October 31, 2009) its Employment Arbitration Rules and Mediation Procedures (effective November 1, 2009) and Fee Schedule (effective January 1, 2010).

ABA Ethics 20/20 Commission.  The Ethics 20/20 Commission has addressed a number of issues relating to new technologies and global practice, including international arbitration.

Dodd-Frank Wall Street Reform and Consumer Protection Act Impacts ADR. Several sections of the Act, Public Law No. 111-203, are relevant to ADR professionals.  Two key provisions relate to mandatory predispute arbitration agreements.  Sections 921 and 1028 give federal government agencies the authority to restrict mandatory pre-dispute arbitration.

First, Section 921, part of TITLE IX (INVESTOR PROTECTIONS AND IMPROVEMENTS TO THE REGULATION OF SECURITIES) Subtitle B (Increasing Regulatory Enforcement and Remedies), of the Act provides:

SEC. 921. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.

(a) Amendment to Securities Exchange Act of 1934- Section 15 of the Securities
Exchange Act of 1934 (15 U.S.C. 78o), as amended by this title, is further amended by
adding at the end the following new subsection:

`(o) Authority to Restrict Mandatory Pre-dispute Arbitration- The Commission, by
rule, may prohibit, or impose conditions or limitations on the use of, agreements that
require customers or clients of any broker, dealer, or municipal securities dealer to
arbitrate any future dispute between them arising under the Federal securities laws,
the rules and regulations thereunder, or the rules of a self-regulatory organization if
it finds that such prohibition, imposition of conditions, or limitations are in the
public interest and for the protection of investors.'.

(b) Amendment to Investment Advisers Act of 1940- Section 205 of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-5) is amended by adding at the end the following
new subsection:

`(f) Authority to Restrict Mandatory Pre-dispute Arbitration- The Commission, by rule,
may prohibit, or impose conditions or limitations on the use of, agreements that
require customers or clients of any investment adviser to arbitrate any future dispute
between them arising under the Federal securities laws, the rules and regulations
thereunder, or the rules of a self-regulatory organization if it finds that such
prohibition, imposition of conditions, or limitations are in the public interest and for
the protection of investors.'.

Second, under TITLE X (BUREAU OF CONSUMER FINANCIAL PROTECTION), Section 1028 provides:

SEC. 1028. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.

(a) Study and Report- The Bureau shall conduct a study of, and shall provide a report
to Congress concerning, the use of agreements providing for arbitration of any future
dispute between covered persons and consumers in connection with the offering or
providing of consumer financial products or services.

(b) Further Authority- The Bureau, by regulation, may prohibit or impose conditions
or limitations on the use of an agreement between a covered person and a consumer
for a consumer financial product or service providing for arbitration of any future
dispute between the parties, if the Bureau finds that such a prohibition or imposition
of conditions or limitations is in the public interest and for the protection of
consumers. The findings in such rule shall be consistent with the study conducted
under subsection (a).

(c) Limitation- The authority described in subsection (b) may not be construed to
prohibit or restrict a consumer from entering into a voluntary arbitration agreement
with a covered person after a dispute has arisen.

(d) Effective Date- Notwithstanding any other provision of law, any regulation
prescribed by the Bureau under subsection (b) shall apply, consistent with the terms
of the regulation, to any agreement between a consumer and a covered person
entered into after the end of the 180-day period beginning on the effective date of the
regulation, as established by the Bureau.

Additional provisions related to arbitration includes in Section 748 and 919B:

SEC. 748. COMMODITY WHISTLEBLOWER INCENTIVES AND PROTECTION.

The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by adding at the end the
following:

`SEC. 23. COMMODITY WHISTLEBLOWER INCENTIVES AND PROTECTION.

`(n) Nonenforceability of Certain Provisions Waiving Rights and Remedies or
Requiring Arbitration of Disputes-

`(1) WAIVER OF RIGHTS AND REMEDIES- The rights and remedies provided for in
this section may not be waived by any agreement, policy form, or condition of
employment including by a predispute arbitration agreement.

`(2) PREDISPUTE ARBITRATION AGREEMENTS- No predispute arbitration agreement
shall be valid or enforceable, if the agreement requires arbitration of a dispute arising
under this section.'.

. . .

SEC. 919B. STUDY ON IMPROVED INVESTOR ACCESS TO INFORMATION ON
INVESTMENT ADVISERS AND BROKER-DEALERS.

(a) Study-

(1) IN GENERAL- Not later than 6 months after the date of enactment of this Act, the
Commission shall complete a study, including recommendations, of ways to improve
the access of investors to registration information (including disciplinary actions,
regulatory, judicial, and arbitration proceedings, and other information) about
registered and previously registered investment advisers, associated persons of
investment advisers, brokers and dealers and their associated persons on the
existing Central Registration Depository and Investment Adviser Registration
Depository systems, as well as identify additional information that should be made
publicly available.

Finally, the Act requires the board of trade to establish rules and provide facilities for alternative dispute resolution for market participants and intermediaries:

SEC. 735. DESIGNATED CONTRACT MARKETS.

. . .

(b) Core Principles for Contract Markets- Section 5 of the Commodity Exchange Act (7
U.S.C. 7) is amended by striking subsection (d) and inserting the following:

`(d) Core Principles for Contract Markets- . . .(14) DISPUTE RESOLUTION- The board of
trade shall establish and enforce rules regarding, and provide facilities for
alternative dispute resolution as appropriate for, market participants and any market
intermediaries.

A copy of the Act is available on the Library of Congress website.

Amended Tennessee Attorney Ethics Rules Affecting ADR.  The Tennessee Supreme Court ordered comprehensive amendments to the Rules of Professional Conduct.  The amendments went into effect on January 1, 2011.  Attorneys who are arbitrators, mediators and advocates in alternative dispute resolution proceedings will be interested in the rules of professional conduct that refer to ADR.  As noted in a comment to Rule 2.2, the rule on lawyers as intermediaries, Rule of Professional Conduct 2.2 "does not apply to a lawyer acting as a dispute resolution neutral, such as an arbitrator or a mediator" because the parties in  a dispute resolution proceeding are not clients of the lawyer, even if the lawyer was appointed with the concurrence of the parties. Other rules of conduct govern a lawyer’s service as a dispute resolution neutral. See RPC 2.4; Tenn Sup. Ct. R. 31."

Ethics Advisory Opinions.  On July 27, 2010, the Tennessee ADR Commission issued two ethics advisory opinions, one on mediators accepting gifts from clients, the other a confidentiality question on whether a mediator may report an assault committed during a mediation.

Workers Comp Appellate Mediation.  On March 2, 2011, the Tennessee Supreme Court repealed its Rule 37 governing mediation in workers compensation appellate cases.  It determined that mandatory mediation of these cases at the appellate level was no longer necessary because mediation is now mandatory at an earlier stage of all Workers Comp cases under Tennessee state law.  The Court's order does not affect Tennessee Rule of Appellate Procedure 34 regarding voluntary appellate mediation,

TN Rule 31 Amendments. On March 10, 2011, the Tennessee Supreme Court amended Rule 31 governing court-ordered mediations.  The following changes went into effect on April 1, 2011:
  • Add the following language to Section 2(n):  “In the context of mediations, a ‘Rule 31 ADR Proceeding’ is any mediation of an Eligible Civil Action conducted by a Rule 31 Mediator.”  The term Eligible Civil Action is already defined in Rule 31(f) as follows:  "‘Eligible Civil Action’ includes all civil actions except forfeitures of seized property, civil commitments, adoption proceedings, habeas corpus and extraordinary writs, or juvenile delinquency cases. The term ‘Extraordinary writs’ does not encompass claims or applications for injunctive relief.”
  • Reword Section 3(a) by changing “will” to “may”:  “(a) Rule 31 ADR Proceedings may be initiated by the entry of an Order of Reference." 
  • Add the following as subsection (c) of Section 5:  “(c) For an Eligible Civil Action mediated by a Rule 31 Mediator, a final report shall be filed in the manner described within this Section.”

See also 2013 Summary of Proposed Amendments to Rule 31 Governing Conduct of Mediators.

ADR CLE programs at ABA Annual Meeting in August. The Section of Dispute Resolution is sponsoring a number of ADR CLE programs at the ABA Annual Meeting in San Francisco August  2013.  To attend, register for the ABA Annual Meeting.
 
Code of Ethics for Arbitrators in Commercial Disputes.  The ABA Section of Dispute Resolution website has on its website the American Bar Association/College of Commercial Arbitrators Annotations to the Code of Ethics for Arbitrators in Commercial Disputes (last updated September 2011).  The Annotation cites judicial decisions and other documents that cite the 1977 or 2004 versions.

Federal Law Impacts Certain Settlements and Judgments Involving Medicare Beneficiaries.  Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) imposes mandatory reporting requirements on group health plan (GHP) arrangements, 42 U.S.C. 1395y(b)(7), and for non-group health plan (NGHP) arrangements - Liability Insurance (including Self-Insurance), No-Fault Insurance, and Workers' Compensation laws or plans, 42 U.S.C. 1395y(b)(8).  See online summary. Entities must report the identity of a Medicare beneficiary whose illness, injury, incident, or accident was at issue, plus other information specified by the U.S. Secretary of Health and Human Services.  Non-Group Health Plan (NGHP) insurers must notify the Centers for Medicare and Medicaid (CMS) about settlements, judgments, awards, or other payment from liability insurers (including self-insurers), no-fault insurers, and workers’ compensation” received by or on behalf of Medicare beneficiaries. The Section 111 reporting requirement is an addition to the prior Medicare Secondary Payer (MSP) law and regulations.  For additional information and links to government-issued User Guides, see the Quick Reference Guide for all responsible reporting entities.  With regard to Non-Group Health Insurance entities, there is a phased in per claimant reporting threshold of Total Payment Obligations to Claimant ("TPOC"), which will change to $2,000 in 2013, to $600 in 2014.  In 2015 all claims must be reported.  See CMS Alert dated Nov. 10, 2010.

Tennessee ADRC Adopts Definition of Practical Work Experience. On April 23, 2013 the Tennessee ADR Commission adopted Policy 16: "Practical work experience shall be defined as full time work of 35 hours or more of work per week." This policy has an impact on applicants for listed Rule 31 mediator status. Specifically, the definition affects the following provisions of Rule 31:

Section 17. Rule 31 Mediators

No person shall act as a Rule 31 Mediator without first being listed by the ADRC. To be listed, Rule 31 Mediators must pay application fees set by the ADRC and must comply with the qualification and training requirements set forth in this section. . . .

(a) Rule 31 Mediators in General Civil Cases.  (1) To be listed by the ADRC as a Rule 31 Mediator in general civil cases, one must: . . .  (B) have a graduate degree plus four years of practical work experience, or a baccalaureate degree plus six years ofpractical work experience; and . . .

(b) Rule 31 Mediators in Family Cases.  (1) To be listed as a Rule 31 Mediator in family cases, one must: (A) comply with the requirements set forth in Section 17(a)(1)(A) and 17(a)(2)(A) and 17(a)(2)(B) above; and . . .(C) have four years of practical work experience in psychiatry, psychology, counseling, social work, education, law, or accounting;
. . .
d) Waiver of Training Requirements for Certain Rule 31 Mediators.  (1) Upon petition to and acceptance by the ADRC, the following persons may be qualified as Rule 31 Mediators without first complying with the qualification and training requirements set forth in Section 17(a), (b), or (c): (i) graduates of accredited law schools who have passed a law school mediation course which awards at least three semester hours credit and which includes the curriculum components set forth in this Rule or their substantial equivalent as determined by the ADRC and who have four years of practical work experience;

For a complete set of ADRC policies, see Policies of Tennessee  ADR Commission.

Rule 31 Amendments.  Effective 2/12/2013, the Tennessee Supreme Court ordered amendments to Supreme Court Rule 31, Sections 11(b)(6) and 11(b)(12). On July 15, 2013, the Tennessee ADR Commission petitioned the Tennessee Supreme Court to adopt amendments to the Court's Rule 31.  On July 22, 2013, the Court published the proposed amendments.  The deadline for any written comments on the proposed amendments to the rule governing the conduct of mediators is January 15, 2014.  See Marnie Huff's Summary of Proposed Amendments to Rule 31 Governing the Conduct of Mediators. 

Tennessee ADR Commission Opinions in 2014.  On Jan. 28, 2014,
the Tennessee ADR Commission issued Advisory Opinion 2014-001 on the
meaning of "licensed attorneys" and "any lawyer in good standing" language in
Rule 31.  On April 16, 2014 it issued Advisory Opinion 2014-0002 on whether
a psychiatrist who is a Rule 31 mediator may conduct mediation at her medical
practice and whether she may provide post-mediation psychiatric services
to a participant in a mediation.

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