Summary of Changes - National Rules for Reesolution of Employment Disputes, Effective November 1, 2009

Summary of Changes Employment Arbitration Rules and Mediation Procedures

Amended and Effective November 1, 2009

The American Arbitration Association recently undertook a review of its Employment Mediation Procedures in order to bring the procedures in line with current practices in mediation as they have developed in recent years. Below is a summary of the significant changes made to the procedures. The revision required one change to the Employment Arbitration Rules in section R-7 as noted immediately below.

R-7. Administrative and Mediation Conferences

A change in the pricing structure of the AAA's Mediation Services required deleting the sentence, "There is no administrative fee for initiating a mediation under AAA Mediation Procedures for parties to a pending arbitration," and replacing it with, " There is no additional filing fee for initiating a mediation under the AAA Mediation Procedures for parties to a pending arbitration."

M-1. Agreement of Parties

Text was added to indicate that by agreeing to mediate under the auspices of the AAA or under its mediation procedures, the parties designate the AAA as the administrator of their mediation.

Text was added to indicate parties by mutual agreement may vary any part of the procedures including, but not limited to, agreeing to conduct the mediation via telephone or other electronic or technical means.

M-2. Initiation of Mediation

Reference to the applicable administrative fee was deleted.

Text was added to indicate parties could file requests for mediation with any of the AAA's regional offices or case management centers via telephone, email, regular mail or fax and that requests for mediation may also be filed online via WebFile at www.adr.org.

Text was added to specify what information the filing party must provide.

Text was added to state that where there is no preexisting stipulation or contract by which the parties have provided for mediation of existing or future disputes under the auspices of the AAA, a party may request the AAA to invite another party to participate in "mediation by voluntary submission".

New Section M-3 has been added as follows:

M-3. Fixing of Locale (the city, county, state, territory and, if applicable, country of the mediation)

i. When the parties' agreement to mediate is silent with respect to locale and the parties are unable to agree upon a locale, the AAA shall have the authority to consider the parties' arguments and determine the locale.

ii. When the parties' agreement to mediate requires a specific locale, absent the parties' agreement to change it, the locale shall be that specified in the agreement to mediate.

iii. If the reference to a locale in the agreement to mediate is ambiguous, the AAA shall have the authority to consider the parties' arguments and determine the locale.

Note: Because of the addition of this new section, the numbers of all subsequent sections of the procedures have been revised accordingly.

M-4. Representation

Text has been revised and now reads as follows:

Any party may participate without representation (pro-se), or by any representative of that party's choosing, or by counsel, unless such choice is prohibited by applicable law. A party intending to have representation shall notify the other party and the AAA of the name, telephone number and address, and email address if available of the representative.

M-5. Appointment of the Mediator

Text was added to direct parties to the online profiles of AAA mediators when searching for a mediator.

Text was added to specify that if the parties have not agreed to the appointment of a mediator and have not provided any other method of appointment, the AAA will send to each party a list of mediators from the AAA's Panel of Mediators.

Text was also added to specify that if the parties fail to agree on any of the mediators listed, or if acceptable mediators are unable to serve, or if for any other reason the appointment cannot be made from the submitted list, the AAA shall have the authority to make the appointment from among other members of the Panel of Mediators without the submission of additional lists.

M-6. Mediator's Impartiality and Duty to Disclose

Section was renamed to "Mediator's Impartiality and Duty to Disclose"

Text was added stating that AAA mediators are required to abide by the Model Standards of Conduct for Mediators in effect at the time a mediator is appointed to a case. Text was also added to note that where there is a conflict between the Model Standards and any provision of the AAA Mediation Procedures, the AAA Mediation Procedures shall govern.

Text was added to state that AAA mediators are required to make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for the mediator.

Text was added to require AAA mediators to include in information to be disclosed any circumstances that would prevent a resolution of the parties' dispute within the time-frame desired by the parties.

In the event a disclosure results in the mediator's removal, the text now says "the mediator shall be replaced" rather than "the AAA will appoint another mediator." This change reflects the revision made to Section M-5.

M-7. Vacancies

The phrase, "in accordance with section M-5" was added to the end of this section.

M-8. Duties and Responsibilities of the Mediator

Text was revised to read as follows:

i. The mediator shall conduct the mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.

ii. The mediator is authorized to conduct separate or ex parte meetings and other communications with the parties and/or their representatives, before, during, and after any scheduled mediation conference. Such communications may be conducted via telephone, in writing, via email, online, in person or otherwise.

iii. The parties are encouraged to exchange all documents pertinent to the relief requested. The mediator may request the exchange of memoranda on issues, including the underlying interests and the history of the parties' negotiations. Information that a party wishes to keep confidential may be sent to the mediator, as necessary, in a separate communication with the mediator.

iv. The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. Subject to the discretion of the mediator, the mediator may make oral or written recommendations for settlement to a party privately or, if the parties agree, to all parties jointly.

v. In the event a complete settlement of all or some issues in dispute is not achieved within the scheduled mediation session(s), the mediator may continue to communicate with the parties, for a period of time, in an ongoing effort to facilitate a complete settlement.

vi. The mediator is not a legal representative of any party and has no fiduciary duty to any party.

vii. The mediator shall set the date, time, and place for each session of the mediation conference. The parties shall respond to requests for conference dates in a timely manner, be cooperative in scheduling the earliest practicable date, and adhere to the established conference schedule. The AAA shall provide notice of the conference to the parties in advance of the conference date, when timing permits.

M-9. Responsibilities of the Parties

Previously titled "Identification of Matters in Dispute" this section has been renamed "Responsibilities of the Parties" with new text as noted below. The text of the previous M-9 was reworded and incorporated into the new M-8 as subparagraph (iii) (see above).

The parties shall ensure that appropriate representatives of each party, having authority to consummate a settlement, attend the mediation conference.

Prior to and during the scheduled mediation conference session(s) the parties and their representatives shall, as appropriate to each party's circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation.

M-10. Privacy

Previously numbered M-11, the phrase "and related communications are private proceedings," was added to the first sentence.

M-11. Confidentiality

Previously number M-12, the following changes were made:

The phrases "Subject to applicable law or the parties' agreement," "other participants (witnesses)," and "The mediator shall maintain the confidentiality of all information obtained in the mediation. . ." were added to the first paragraph.

The phrase "the following, unless agreed to by the parties or required by applicable law" was added to the third paragraph.

The phrase. . ."a party or other participant" was added to subparagraphs i. and ii.

M-12. No Stenographic Record

Previously numbered M-13. No text changes.

M-13. Termination of Mediation

Previously numbered M-14, the following text changes have been made:

The phrases "or verbal" and "would no longer contribute to a resolution of the parties' dispute, or" were added to the second paragraph.

The phrase, "or verbal" was added to the third paragraph.

A fourth paragraph, reading as follows, was added:

iv. When there has been no communication between the mediator and any party or party's representative for 21 days following the conclusion of the mediation conference.

M-14. Exclusion of Liability

Previously numbered M-15, the word "error" was added to the first sentence before the word "act", and the following two sentences have been added to the end of the section:

Parties to a mediation under these procedures may not call the mediator, the AAA or AAA employees as a witness in litigation or any other proceeding relating to the mediation. The mediator, the AAA and AAA employees do not have the legal competency to testify as witnesses in any such proceeding.

M-15. Interpretation and Application of the Rules

Previously numbered M-16. No text changes.

M-16. Deposits

This is a new section which reads as follows:

Unless otherwise directed by the mediator, the AAA will require the parties to deposit in advance of the mediation conference such sums of money as it, in consultation with the mediator, deems necessary to cover the costs and expenses of the mediation and shall render an accounting to the parties and return any unexpended balance at the conclusion of the mediation.

M-17. Expenses

This section has been substantially re-written and now reads as follows:

The expenses of the mediation, including required traveling and other expenses or charges of the mediator, shall be borne equally by the parties unless they agree otherwise. The expenses of participants for either side shall be paid by the party requesting the attendance of such participants.

M-18. Cost of the Mediation

Reference to $250 in first sentence of third paragraph has been changed to $200.

Last sentence in third paragraph has been changed and now reads as follows: "These costs shall be borne by the initiating party unless the parties agree otherwise."