A Pennsylvania appellate panel has denied a boarding school’s request to arbitrate claims arising from the skiing death of a student who joined the school’s ski team in furtherance of a requirement that she participate in an organized sport. As the court explained, the complaint alleged that “any student who wanted to try out for the team needed to have the ability to ski nearly any trail on any mountain under any condition. Decedent did not satisfy those requirements.” The court denied the school’s attempt to invocation of arbitration under an enrollment contract provision, when the arbitration request came a year into the litigation and after the school had received certain adverse court rulings. The court’s opinion can be found here.

With the extensive move toward Zoom and other online arbitrations, what can be done to compel the video attendance of witnesses? This article by Gaela Normile of Vandeventer Black LLP, published on JD Supra, provides an answer, against the backdrop of the Eleventh Circuit’s decision in Managed Care Advisory Grp., LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019).

Nora Valenza-Frost of Carlton Fields offers this perspective, available in JD Supra, on the court’s decision in Jackson, et al. v. The Aliera Companies, Inc., vacating its prior decision denying a motion to compel arbitration and finding that the movants did not waive their rights to arbitrate.

Two recent decisions have independently held that the failure of a party to advance fees in accordance with American Arbitration Rules will preclude the party from continuing with arbitration.

In one of these matters, the Alabama Supreme Court reversed a lower court’s order compelling arbitration of claims brought by an employee who joined the defendant company as a result of folding in the operations of her human-resources consulting practice. In Fagan v. Warren Averett Companies, LLC, the plaintiff initiated a AAA arbitration but the defendant balked at the AAA’s determination that, under applicable AAA rules, the company was responsible for advancing the arbitrator’s compensation. Consequently, the plaintiff brought suit, to which the company objected, claiming the dispute was subject to arbitration. The Supreme Court disagreed, finding that the company’s initial refusal to arbitrate constituted a default under the arbitration agreement, freeing plaintiff her arbitration obligation.

In Epps v. Rockmo Entrtainment, LLC, the Georgia Court of Appeals affirmed an order denying a motion to compel arbitration, when the movant failed to advance its share of the three arbitrators’ compensation, claiming that the AAA’s characterization of the case as complex was not warranted since the claimant’s damage request was unsupportably high, and that, if properly characterized, only one arbitrator would be required. The movant failed to abide by the AAA’s determination that the issue should be determined by the three arbitrators, and when the movant failed to do so, the AAA suspended the case. The Georgia court determined that movant’s actions constituted a waiver of its right to arbitrate, and thus the claims were properly submitted to the courts for determination.

COVID-19 claims are beginning to emerge in an arbitration context. In Fitzgerald v. Grand, Circle, LLC d/b/a Overseas Adventure Travel, a U.S. District Court addressed the cancellation of a cruise due to the pandemic. The passengers, upset at the cruise lines willingness to provide an opportunity to reschedule the trip but not a refund, brought suit. The cruise line invoked arbitration based upon the terms of the purchase agreement.

The court upheld the arbitration requirement, severing provisions that would have required the passengers to arbitrate in a location not proximate to their home and requiring them to contribute more to the costs of the arbitration that permitted under the arbitration tribunal’s rules.

By a 2-1 vote, a Washington Court of Appeals determined that an Authorized Representative of Sprint must arbitrate claims even though the representative commenced litigation only after Sprint declined requests to mediate in accordance with the parties’ agreement. In Pagecom, Inc. v. Sprint Solutions, Inc., the majority held that the occurrence of a mediation after the litigation was commenced was sufficient to trigger the obligation to arbitrate.

Angela Kleine and Neil Tyler of Morrison & Foerster LLP have authored this article in Lexology. According to the article, “[t]hese cases all underscore the importance of paying careful attention to the drafting and presentation of arbitration provisions. Even seemingly minor differences in drafting and approach can result in disputes being heard outside their intended fora.”

In Neal v. Navient Solutions, LLC, the Eighth Circuit Court of Appeals reversed the lower court, holding that a student loan borrower’s claims against the loan servicer must be arbitrated even though the servicer was neither a party to the loan agreement nor specifically referenced by the terms of the loan agreement.

The agreement provided for arbitration of claims brought by the borrower against the lender “and its successors and assigns, and any other holder of this Agreement.” The loan servicer did not specifically fit this definition but, as an agent of the assignee of the note, the appellate court nonetheless determined that arbitration was appropriate.

JD Supra has published two articles authored by practioners at Miles Mediation & Arbitration that offer practitioners sophisticated insights into mediation process and techniques.

Nigel Wright is the author of “How does BigLaw Resolve Commercial Litigation Cases in Mediation?”, from which all litigating attorneys will benefit.

“Mediation Strategies to Overcome Bias, Prejudgments and Assumptions,” written by Bianca Broom offers examples of implicit (and explicit) bias that enter into the mediation process, and techniques to overcome it.

Donald Frederico of Pierce Atwood LLP provides insight into the differentiating factors for mediating class action matters in this article available through Lexology.