Margaret Huff Mediation
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
- 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.
Copyright 2008-2014 Margaret M. Huff. All rights reserved.
Margaret Huff Mediation PO Box 121951 Nashville TN 37212-1951
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").
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. 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. 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." 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.”
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;
Tennessee ADR Commission Opinions in 2014. On Jan. 28, 2014,
meaning of "licensed attorneys" and "any lawyer in good standing" language in
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.