July 2001
Contra Costa Lawyer

Cutting Your Way Through the ADR Jungle
By Harvey Sohnen

Let's follow the case of Al Amo, Plaintiff versus Mo Raga, Defendant. Al was a baker, employed at a local bakery. He worked a fourteen hour day, six days a week, and was never paid overtime. When he inquired of Mo, why he never received overtime pay, he was told that he was exempt from overtime laws because he received a salary, and because he was a supervisor, indeed, he personally supervised each pastry he baked. There was an employment contract with a binding arbitration clause, requiring that all employment disputes be submitted to binding arbitration administered by Xpensive Dispute Resolution Services. The agreement is silent as to costs.

Things unravel at work. Al leaves the bakery and hires Ann Tioch, Esquire to claim four years of unpaid overtime pay. Tioch sues, and almost immediately gets a letter from Mo's attorney, Sam Ramon, demanding she submit to arbitration at Xpensive, involving three arbitrators if the parties can't agree to a single arbitrator. Sam points out that under California's arbitration law, when the arbitration clause is silent, each party shall pay his pro rata share. CCP Section 1284.2. The daily rate for the arbitrators employed by Xpensive is, give or take a little, two months of Al's salary. This might be a good time for Tioch to read Dick Frankel's article on "Employment Arbitration Agreements: Unresolved Issues." To make a long story short, Tioch breaks the arbitration clause.

Next on the horizon is the first status conference in a Fast Track department. The parties express an interest in mediation. The assigned judge sends them to EASE. To read about the new "Stipulation and Order re: Participation in ADR" that the parties must sign, Tioch turns to Judge James Trembath's article in "Bench Talk."

Before dashing over to the ADR office, to comply with the court's directive that they pick a mediator that day, Tioch and Ramon might want to learn about Contra Costa's ADR programs by reading Bill Waterman's article "ADR Update: Recent Developments in ADR Programs." The good news is that the EASE program, ably administered by Robin Siefkin, has a 67% success rate, and there are other new ADR programs in the offing.

The parties stipulate to Dan Ville as a mediator. However, at the mediation itself, Mo Raga participates by "telephone standby " from his vacation condo out of state, in violation of the rules of the EASE program. The mediation is a big waste of time, as Dan states in his report to the Court. Is there a remedy for such rule violations in the course of a confidential mediation, and can the mediator's report be used as evidence? For the latest case law on developments on this point, and other legal issues concerning ADR, refer to Palmer Brown Madden's "ADR 2001 Update."

After Sam Ramon's unsuccessful summary judgment motion, the parties make another attempt at mediation. To prevent an incomplete and subsequently abrogated agreement at this new mediation, they might wish to study Katherine Thomson's article "We Have An Agreement! Now We Can Go Home"

The parties may also want to consider a different approach to ADR for the next case-via the Internet.
In their article "ADR-On Line" Clyde Long and Claudia Hagadus Long, themselves on-line ADR providers, survey the state of ADR on-line and on-line mock juries.

I thank the authors for their contributions and hope the readers find the contents of use in their own navigations through ADR.

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 Last updated: 6/4/2003