Via On Point News, we learned that Halliburton/KBR has recently filed a petition for certiorari with the U.S. Supreme Court on the case Jones v. Halliburton, 583 F.3d 228 (5th Cir. 2009). The issue is whether the arbitration provision in an employment contract includes the tort claim of sexual assault. The petition presents this question:
Respondent Jamie Leigh Jones filed a complaint in federal district court against her employer, seeking redress of injuries she allegedly sustained from a sexual assault by another employee in overseas employer-provided housing in which she was required to reside as a condition of her employment. Jones’s employment contract required arbitration of “any and all claims that you might have against Employer related to your employment,” including “any personal injury allegedly incurred in or about a Company workplace.” A divided United States Court of Appeals for the Fifth Circuit narrowly construed the arbitration clause to exclude Jones’s claim. The court reasoned that sexual assault claims should be deemed generally excluded from such clauses. It imported into the “related to” clause a requirement that the claim was only arbitrable if “significantly” related to employment, and rejected application of the general rule that overseas employer-provided sleeping quarters are part of the workplace. The question presented is:
Under the Federal Arbitration Act’s presumption of arbitrability, which requires courts to give arbitration agreements the broadest pro-arbitration construction of which they are susceptible, may a court develop rules of exclusion to narrow standard broad arbitration clauses?
See Professor Marcia L. McCormick from the Workplace Prof Blog for comments about this case. (post available here)
Related Posts:
- Employment Arbitration: Issues Implementing the ‘Franken Amendment’ (Feb. 2, 2010)
- U.S. Arbitration and Mediation Legislative Update (Jan. 25, 2010)
- Guest-Post Part II | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 7, 2010)
- Guest-Post Part I | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 6, 2010)
- 2009 Developments: Consumer and Employment Arbitration (Dec. 23, 2009)
- Defense Contractor Mandatory Arbitration Passes Senate (Oct. 13, 2009)
- Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18, 2009)
- Employment and Consumer Arbitration: NPR Article (June 10, 2009)
Related Posts:
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Tags: employment arbitration
We thought that you might be interested to listen to the Podcast entitled “How To Work With E-Mediation and Special Masters in E-Discovery Cases” by Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog and Allison O’Neal Skinner from the Alabama-based law firm Sirote & Permutt. The ESIBytes™ Podcast of about 40 minutes is available here. (no PowerPoints, but free!)
Peter and Allison will also host the TexasBarCLE Webcast “When to Use eMediation or Special Masters in eDiscovery“ on February 16, 2010 from 2-3:30pm. The Webcast is 1.5 hours and will have a good number of PowerPoint slides. (more details are here)
Technorati Tags: ADR, law, mediation
Tags: Mediation, podcast, special masters
The United States Court of Appeals for the Fifth Circuit held that an arbitration clause is enforceable notwithstanding that the parties had terminated their services contract.
In Hall-Williams v. Law Office of Paul C. Miniclier, PLC, No. 09-30113 (5th Cir. Jan. 13, 2010), Carolyn Hall-Williams (Hall-Williams) is a former client of the Law Office of Paul C. Miniclier (Miniclier). In September 2006, Hall Williams hired Miniclier to represent her in an insurance dispute with Allstate Insurance Company (Allstate) regarding a claim for damages caused by Hurricane Katrina. The retainer contract provided for 33 1/3 % contingency fee if the case settled before suit was filed and a 40% contingency fee thereafter. The contract also provided for binding arbitration by the Louisiana State Bar Association for disputes arising under their contract.
Miniclier filed a lawsuit against Allstate in August 2007. At that time, David Binegar (Binegar) and Tiffany Christian (Christian) were employed by Miniclier and worked on the Hall-Williams lawsuit against Allstate. However, on March 7, 2008 Binegar and Christian resigned and formed their own law firm. Hall-Williams hired them and terminated Miniclier as her counsel. On March 13, 2008, Allstate and Hall-Williams settled their dispute for an undisclosed amount. Miniclier insists that he was due 40% (plus costs) of the settlement and requested the matter to be submitted to arbitration. The district court denied Miniclier’s motion to compel arbitration and Miniclier now appeals.
The Fifth Circuit highlighted the legal standard to grant a motion to compel arbitration:
- Whether there is a written arbitration agreement. The court noted that the parties do not dispute the existence of an arbitration agreement and addressed Hall-Williams claims that:
- The agreement is unenforceable due to the termination of Miniclier’s services. The court, citing the FAA ( “a written provision in any…contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract…, shall be valid, irrevocable, and enforceable…”) concluded that the arbitration clause is enforceable.
- Miniclier had waived his right to arbitrate. The court stated that “[w]aiver will be found when a party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.” Hall-Williams claims that Miniclier waived his right to arbitrate by: (a) Filing a motion to intervene, (b) Sending an email declining to attend the settlement conference, and (c) Failing to invoke arbitration in response to a magistrate judge’s order requiring a fee application.
- Whether any of the issues is referable to arbitration. The court concluded that the underlying dispute is referable to arbitration.
However, the court concluded that these events do not demonstrate Miniclier’s waiver.
Accordingly, the court vacated the judgment of the district court and remanded for referral to arbitration.
Related Posts:
- Arbitration of Attorney/Client Disputes Webcast Post-Mortem (with paper by Chuck Herring) (Feb. 19, 2009)
- The Texas Perspective on Arbitration of Attorney/Client Disputes (Feb. 4, 2009)
- Arbitrating With Your Client? (with paper by Dicky Hile) (Jul. 28, 2008)
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Tags: attorney's fees
To follow up on our earlier post, here are more details about Hong Kong’s mediation initiative:
December 10, 2009
By Alfred Ip, Partner at OLN and CEDR Accredited Mediator
From 1st January 2010, the court will require parties to civil proceedings to consider using mediation as an alternate means to settle their dispute. The court will require the parties to justify their decision in case they refuse to attempt mediation, failing which adverse costs order may be made against that party, irrespective of the outcome of the litigation.
The court also put the burden on the parties’ legal representatives to advise their clients properly on mediation, as early as possible. In fact, good lawyers in dispute resolution should be in a position to advise their clients of various ways to resolve a dispute. Civil proceedings should not be the only way to resolve disputes among parties in the modern era.
Mediation provides a platform for parties in dispute to discuss their issues in dispute in the presence of a trained and impartial mediator. The role of the mediator is to direct the parties to look at the future, and assist the parties in identifying their needs, in order to explore the alternatives available to the parties in resolving the disputes.
Mediation trumps over court proceedings in many ways:
1. Mediation is less expensive compared with litigation, because of the time involved.
2. The process of mediation is much quicker compared with court proceedings. Mediation can take place within weeks, while court proceedings often go on for years.
3. Some of the disputes and grievances arise out of the parties’ misunderstandings. Through dialogue, parties can be in a better position to understand their respective points of view, and the parties’ ongoing relationship can be saved through clearing such misunderstandings, which is less likely to be achieved through court proceedings.
4. Any resolution made at the end of the mediation would be made by the parties themselves, instead of a third party’s decision imposing on the same.
5. As the outcome is controlled by the parties, parties can tailor their agreement according to their wishes or their situation, and achieve an outcome which may not be achievable through court proceedings.
6. Parties are less likely to be aggrieved by the outcome of the mediation, which is agreed by the parties themselves. The problem of prolonged appeal process would not arise.
7. Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.
8. The mediation process, and the end result of the same, is private and confidential, whereas a judgment in court proceedings is often a public record. What the parties discussed throughout the mediation process cannot be used in any court proceedings, thus the parties are at liberty to voice their standpoint freely.
The Law Society of Hong Kong and the Hong Kong International Arbitration Centre both maintain a panel of mediators for the parties to choose, while the Centre for Dispute Resolution is the most influential non-profit mediation body.
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[Ed. note: hat tip to our blog contributor Don Philbin.]
On January 20, 2010, the Council of Defense and Space Industry Associations (CODSIA) sent a letter to the Director of Defense Procurement and Acquisition Policy raising questions and issues in implementing Section 8116 of the Fiscal Year 2010 Defense Appropriations Act (aka the “Franken Amendment”). Section 8116 prohibits the use of funds for certain contracts unless the contractor agrees not to enter or enforce binding arbitration contracts with their employees.
CODSIA seeks to clarify Section 8116’s legislative intent in order to implement the amendment consistently. Find the letter describing the issues here.
Related Posts:
- U.S. Arbitration and Mediation Legislative Update (Jan. 25, 2010)
- Guest-Post Part II | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 7, 2010)
- Guest-Post Part I | Employment Arbitration: Short-Term Value but Long-Term Harm (Jan. 6, 2010)
- 2009 Developments: Consumer and Employment Arbitration (Dec. 23, 2009)
- Defense Contractor Mandatory Arbitration Passes Senate (Oct. 13, 2009)
- Jones v. Halliburton: Fifth Circuit Rules on Arbitration of Tort Claims by an Employee (Sept. 18, 2009)
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Tags: employment arbitration
Please join us in congratulating Mediate.com for their recent ABA Award. As readers of this blog may know, Disputing is a Mediate.com Featured Blog.
Mediate.com Receives Prestigious American Bar Association (ABA) Award
Eugene, Oregon - Mediate.com, the leading mediation web site in the world, has received the 2010 American Bar Association (ABA) Lawyer as Problem Solver Award. The award is for the use of “legal skills in creative, innovative and often nontraditional ways.” The award presentation will be on April 9, 2010 in San Francisco.
In awarding the Problem Solver Award to Mediate.com, the American Bar Association provides the following statement:
“Mediate.com has been at the forefront of making the power of the Internet accessible to lawyers, mediators and dispute resolution practitioners. Mediate.com has been developing digital products and resources that have advanced the presence and depth of the field of dispute resolution in immeasurable ways and fundamentally altered the practice of mediation by making online strategies practical and available.
“Mediate.com offers the field one of the most used information resources, replete with blogs, cutting edge articles, news of mediation and negotiation practice, as well as a place for interactive dialogue. The website is a practical tool for practitioners and helps them become more effective problem solvers.
“Mediate.com applies the technology of the internet directly to lawyers and dispute resolution practitioners. The founders of Mediate.com had the foresight to see the importance and applications of the Internet and bring them to bear on a developing field of practice. This groundbreaking website has given tools and resources to the public and to ADR professionals to do their own problem solving in virtually every field of law.”
James Melamed, CEO of Mediate.com, responded to news of the award saying that, “If ever there was a team effort, this is it. Mediate.com is the result of more 1,000 authors contributing their best work since 1996. As a result, we are able to bring the best of mediation to the broader world.” Mediate.com has been the #1 mediation destination site for 15 years and continues to provide world class content to consumers and professionals.
In commenting on the Mediate.com award, Peter Adler, President of The Keystone Center in Colorado, said, “Mediate.com provides an enormous service to the vast community of people who share a passion for conflict resolution, who want to make the world a better place and who are doing this every single day.” Jeffrey Krivis, a leading California attorney and civil mediator, adds, “Based upon 15 years of passionate work, Mediate.com has become to mediators what Google has become to the Internet.”
Mediate.com was founded in 1996 and has developed the most comprehensive mediator directory in the world with over 5,000 listed mediators. Through its 15 years of development, Mediate.com has elevated and expanded the mediation industry and helped to bring mediation to every computer on earth. More information about Mediate.com services can be found here.
Tags: mediate.com, Mediation
by Holly Hayes Bovio
I recently read a healthcare conflict resolution article in FOCUS, the newsletter of the Harvard Medical, Dental, & Public Health Schools. The article begins with the statement, “Everyone in health care, it seems, has a war story about conflict at work.”
In an annual one-week intensive immersion course, Leonard Marcus, who directs the program for Health Care Negotiation and Conflict Resolution at Harvard, and his team teach conflict resolution skills to health care leaders from different organizations. The course adapts to health care the basic principles of conflict resolution described in “Getting to Yes” by Roger Fisher, William Ury, and Bruce Patton of the Harvard Negotiation Project.
Marcus discusses why conflict in the health care setting is different from conflict in other industries and reviews the ‘Four-step Approach to Problem-solving’ used in the Harvard course: “In health care, we are passionate about what we do, and that’s a plus,” Marcus said. “When passions collide, that same drive can be a source of conflict. The stakes are high–life and death, large amounts of money, big institutions, reputations. Therefore, people fight hard which, ironically, becomes an obstacle in and of itself.”
A Four-step Approach to Problem-solving
Four negotiation steps developed by the Program for Health Care Negotiation and Conflict Resolution guide minor and major negotiations in health care. The structured multidimensional problem-solving process is called “Walk in the Woods,” after a famous story in which international negotiators at loggerheads over a nuclear arms treaty went for a walk in the woods near Geneva and discovered common interests that led to new solutions.
Step one: self interests. Each participant articulates his or her view of key problems, issues, and options. They are encouraged to actively listen, question, and interact with one another.
Step two: enlarged interests. The participants reframe their understanding of current problems and possible options with a wider perspective, based on the integrative listening and confidence-building that occurred in step one.
Step three: enlightened interests. The group is ready to engage in innovative thinking and problem-solving, generating ideas and perspectives that had not previously been considered.
Step four: aligned interests. Participants build common ground perspectives, priorities, action items, agreement, or plans for moving forward. Depending on the scope of the intended objectives, at this point they recognize the tangible contributions and opportunities accomplished through the meeting.
Health care professionals at all levels who find themselves in a situation of work conflict can benefit from the “discovery of common interests” — after all, they share the overarching common interest of working together to provide patient’s with high quality care. The Harvard Four-step process can lead parties toward those “aligned interests” and enhanced teamwork.
Technorati Tags: Healthcare, ADR, law, mediation
Tags: negotiations
A single-member Panel at the National Arbitration Forum decided the domain dispute Microsoft Corporation v. TN Chen, FA0911001296240 (Nat. Arb. Forum Jan. 13, 2010). The Complainant is Microsoft Corporation and the Respondent is TN Chen from China. The domain names at issue are <bing-wallpaper.com> and <bingimg.com>, registered with GoDaddy.com, Inc. “Bing” is the name of Microsoft’s web search engine.
ICANN’s Uniform Domain Name Dispute Resolution Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be canceled or transferred:
- The domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
The Panel found that the disputed domain names both contain Complainant’s mark and add the generic top-level domain “gTLD” “.com.” The <bing-wallpaper.com> domain name also adds a hyphen and the generic term “wallpaper.” The <bingimg.com> domain name further adds the abbreviation “img,” which stands for image. The Panel finds the addition of a hyphen, generic term, letters, and a gTLD fail to adequately distinguish the disputed domain names from Complainant’s mark. Therefore, the Panel finds Respondent’s <bing-wallpaper.com> and <bingimg.com> domain names are confusingly similar to Complainant’s BING mark. - Respondent has no rights or legitimate interests in respect of the domain name.
Because Respondent has offered no evidence, and there is no evidence on the record, suggesting that Respondent is commonly known by the <bing-wallpaper.com> and <bingimg.com> domain names. Complainant asserts that Respondent has never been authorized or licensed to use the BING mark.Therefore, the Panel found that Respondent has not established rights or legitimate interests in the <bing-wallpaper.com> and <bingimg.com> domain names. - The domain name has been registered and is being used in bad faith.
Finally, the Panel explained that Respondent’s <bing-wallpaper.com> and <bingimg.com> domain names resolve to a website containing hyperlinks to search engine providers that compete with Complainant. Internet users may use a competing search engine instead of Complainant’s new search engine because of Respondent’s competing use of the confusingly similar disputed domain names. Therefore, the Panel finds Respondent’s use of the disputed domain names disrupts Complainant’s search engine business, which constitutes bad faith registration.
Accordingly, the Panel ordered the disputed domain names to be transferred from the Respondent to the Complainant.
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ADR, law, arbitration, domain names disputes
Jose Antonio Garcia Alvaro, de Arbitraje y Mediación (ARyMe) reporta lo siguiente:
Cataluña se adelantó –y sigue siendo objetivamente la Comunidad más avanzada y atrevida en materia de mediación de España—, pero Valladolid le sigue la pista en materia de mediación civil, si bien a nivel de proyecto inicial piloto de mediación civil adscrito inicialmente a dos juzgados.
Así, Valladolid ha obtenido el visto bueno del Consejo General del Poder Judicial de España para poner en marcha la mediación civil como programa piloto anexo a los tribunales de esta ciudad. El principal impulsor de esta valiosa iniciativa fue, y es, el Presidente de la Audiencia Provincial de Valladolid, D. Feliciano Trebolle. Su propuesta fue, y es apoyada por Dª Margarita Uría, Vocal del CGPJ, que hizo hincapié en la novedad del programa y en la trayectoria de Cataluña en este ámbito.
¿Qué se pretende? A nivel de programa piloto no puede ser la pretensión tanto la “descarga a los tribunales”, como acercar la mediación a los justiciables, que de otra manera ni se plantearían la mediación por ignorancia sobre la existencia de la mediación como alternativa. Dos mil diez y esta es la realidad en España: ignorancia casi absoluta sobre mediación civil.
Programas piloto de esta naturaleza cumplen con las Directivas de la UE sobre mediación de un lado; de otro, contribuyen a la modernización de la Justicia, que no todo han de ser ordenadores basados en z/OS mainframe; por último, se acostumbra a la Ciudadanía a, cuando menos, contemplar alternativas al juicio ordinario. Estos tres elementos serán los que en su día –y a largo plazo— contribuyan a la “descarga” de asuntos pendientes.
Las Juzgados que se estrenarán en este programa piloto serán los de Primera Instancia 5 y 7. Como en todo programa piloto de esta naturaleza, serán los jueces quienes decidan qué asuntos en su opinión son idóneos para la mediación. Sólo será exigible que tras esta opinión inicial del Juez, las partes quieran someterse voluntariamente a un proceso de mediación. A diferencia de un creciente número de países, España no se atreve con la mediación prejudicial obligatoria, ni tan siquiera en programas piloto.
La naturaleza de los asuntos que se someterán inicialmente a mediación serán “sencillos”, propios de juicios verbales, monitorios de muy poca cuantía, y relacionados generalmente con impagos de créditos y deudas en general, asuntos hereditarios, de comunidades de vecinos, etc.; es decir, asuntos civiles cotidianos, por expresarlo de alguna manera carente de tecnicismo.
Se puede, o no, estar de acuerdo con la mediación como elemento reconstructor de la paz social, un eslogan relativamente reciente y persistente en sociedades que todavía están en fase de venta de las bondades de la mediación. Realmente, se trata de resolver disputas por una vía más sencilla, ágil y comprensible en la que las partes retoman el protagonismo, que en cierta manera ceden a los tribunales por el mero hecho de demandar lo que sea de quien sea. Lo de “hacia la Paz Social”, “cultura del acuerdo” y similares, es generalmente más propio de personas mediadoras que de personas mediadas hoy por hoy
Margarita Uría insta al Ministerio de Justicia para que redacte/diseñe un “estatuto del mediador” con objeto de armonizar la legislación en materia de mediación en la totalidad de España. Quizás sea demasiado pronto, porque tiene generalmente poco sentido legislar lo que apenas se usa, a menos que el aburrimiento lleve miradas deambulantes a este ámbito. Un programa piloto es una taza; un estatuto corre el peligro de ser taza y media a destiempo.
Quizás sea más acertado esperar y ver qué sucede, qué derroteros toma la mediación civil, qué elementos patológicos presenta, o no presenta, en nuestra realidad regional y nacional, que no en la realidad de ensayistas expertos tan adelantados en el camino hacia la mediación –no es sorna— que la sociedad civil ni les ven, ni les leen, ni les entienden. De otro modo, a escribir legislación de despacho, que es barato. ¿Es barato? ¿Es, sobre todo, aconsejable?
Es de recordar el advenimiento de ODR a finales de los noventa y principios de la primera década de 2000. No ajeno a este fenómeno, el Colegio Federal de Abogados de los Estados Unidos de América se preguntó si merecía la pena regular o recomendar la legislación de esta forma de presentar ADR. Se contestó así mismo que no, que era demasiado pronto, que ninguna entidad ODR había madurado, que el modelo de negocio era embrionario, y que regular/legislar sería equivalente a no poder nunca comprobar desde una prudente distancia si la criatura que da sus primeros pasos se sostiene, o se cae. Optaron por dejar crecer a la criatura desde la vigilancia, pero sin reglas, aún habiendo podido elucubrar contra qué se golpearía, o qué podía haber roto, que es parte de la esencia de la mentalidad jurídica “continental”. En definitiva, a veces parece aconsejable animar y dejar hacer; la sorpresa no siempre ha de ser decepcionante, que es parte de la esencia de la mentalidad jurídica anglosajona.
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Tags: Mediation
Jose Antonio Garcia Alvaro from ADR Resources (ARyME) reports:
In Spain, Catalonia has always been a step ahead of the rest of the country when it comes to mediation. Catalonia was the first region in the country to pass an act regulating family mediation, and the first ever to legislate civil mediation at large. Valladolid (a province of the larger Castilla-León region) follows suit, and has decided to pilot-test a court-annexed program on civil mediation.
Hon. Feliciano Trebolle, President of the Audiencia Provincial of Valladolid has spearheaded this project, and Ms. Margarita Uría, of Spain’s General Council of the Judiciary, has supported it enthusiastically.
What is the point of this pilot project?, What does it intend to accomplish? As a pilot project its intention cannot be “alleviating perennially overburdened courts”, as much as binging mediation to Valladolid’s citizens, to its civil society, a society that does not even know what mediation actually is. In fact, most of Spain, today in 2010, does not know that mediation can be alternative to litigation because almost no one has explained its nature and usefulness.
Pilot programs of this nature are useful on many accounts. First, promoting mediation in civil matters is in keeping with European Union Directives in this area. Second, mediation can help modernize the Justice system in Spain, as not all that is needed are main-frame, z/OS managed computer systems. Third, civil mediation pilot projects will touch some who will hopefully talk to others, thus putting mediation on the larger civil map. The combination of all three collateral consequences may just alleviate that overburdened Judiciary, in time.
The pilot program will start this month of January in two First Instance Courts in Valladolid. This is the jurisdictional level where citizens go to resolve minor civil disputes regarding small loans, neighbor relations, hereditary disputes, and the like.
Justices will have full discretion to choose which cases they think would be best suited for mediation. However, Judges will not be allowed to mandate that parties mediate. The basis of the pilot program requires the consent of the parties.
There is entirely too much talk about mediation as some sort of “tool that brings about social harmony and peace”, instead of being sold as what is: a worthy, useful alternative to litigation. This kind of talk tends to be found in societies where mediation is not established. Additionally, slogans of “social peace through mediation” is more mediator talk than party talk, as citizens rarely endeavor to consciously contribute to creating a culture of anything, but rather want their disputes resolved in a comprehensible, sensible, professional, time and cost-efficient manner.Ms. Margarita Uría, of the Judiciary of Spain, is thrilled, too thrilled. The pilot project has not yet begun, and Ms. Uría is already calling to draft a “mediator statute to harmonize mediation legislation throughout Spain”. Mind you, family mediation laws are barely 10 years old; most are less than five years old. Mediation for civil matters outside family-related disputes is practically non-existent. Commercial mediation does not exist for all practical purposes.
Just as you can ban smoking in countries whose population can’t afford Marlboro’s –meaning that that there is no smoking to begin with—on account that it is the “modern thing to do”, it is obvious that you can legislate mediation in countries with little or no mediation tradition. This might be a problem, because legislation for the sake of legislation pleases the supply side of the equation at best (mediators), not so much the demand side, civil society, that needs time to assimilate a new way to resolve disputes.
Pilot mediation programs do build a culture of mediation; far-reaching mediation legislation may just hinder its growth if untimely passed. Just about every country has mediation experts –no cynicism intended—but in some countries (Spain included), Legislatures should wait and see instead of acting on sound-bites, slogans and essays on how wonderful mediation is in countries thousands of miles away. Why Spain calls for country-wide mediation legislation on account of a pilot that has not yet kicked in appears closer to zeal than to reason.
Does anybody remember the advent of ODR in the US, back not so long ago? Aware of this trend, the ABA thought about regulation. Then they stopped cold, and issued recommendations recognizing that ODR was too immature to be legislated and/or formally regulated, arguing that ODR organizations needed time to find out if they had a viable business model, and that it was wiser to wait and see how it matured on the supply and demand sides.
There is a fundamental difference between Continental/Roman and Anglo-Saxon jurisdictions. While the former seems to always be seeking perfect, air-tight legislation in an intellectual vacuum, the latter is more prone to let the reality of disputes shape, through case law, laws that in a Roman-based legal tradition would be labeled incomplete. There seems to be no reason today in Spain to try harmonizing non-existing legislation for the sake of it.
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Tags: Mediation
