Jonathan Walton of the Global Insurance Department co-authored this piece in the American Bar Association's Tort Trial & Insurance Practice Law Journal, Winter 2016 (51:2), discussing alternative dispute resolution.
There are significant recent developments in the field of alternative dispute resolution that any legal scholar or practitioner should consider. The issue arguably seeing the most interest is the question of the arbitrability of consumer class actions that are customarily brought under state law yet preempted by the Federal Arbitration Act (FAA),1 thus thrusting consumer class participants into separate and individualized arbitration proceedings. In recent years, the U.S. Supreme Court has issued several important opinions on this subject, generally expanding the FAA’s scope to restrict consumer class proceedings. Most recently, on December 14, 2015, the Supreme Court found that the California Court of Appeal was incorrect in denying DIRECTV’s efforts to compel individual arbitration of consumer complaints about potentially illegal termination fees charged by the satellite television provider.2 Ongoing efforts to promote arbitration and preclude class action litigation raise questions about who decides what types of claims are preempted and thus arbitrable and what, if any, impact does a state or federal statutory basis of claims have on whether waivers of class proceedings are unconscionable or against public policy. The State of California has been in the forefront of several recent high-profile decisions, garnering attention from the Supreme Court and various federal circuits on how to best address these issues on a case-by-case basis.
This survey article will also discuss a number of notable decisions relating to the award of attorney fees and exemplary damages by arbitrators. Courts continue to issue decisions regarding the usual procedural questions, such as who decides whether a claim is arbitrable, the enforceability of final decisions, vacatur, and the availability of third-party discovery. Finally, this article will explore recent developments with regard to mediation, the most common alternative dispute resolution practice.
To read the full article in the Tort Trial & Insurance Practice Law Journal, Winter 2016 (51:2), click here.