WisBar News: State Bar seeks member feedback on authorizing amicus on vacating arbitration awards; feedback is due Feb. 3:

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    January
    23
    2009

    State Bar seeks member feedback on authorizing amicus on vacating arbitration awards; feedback is due Feb. 3

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    Jan 23, 2009 – The State Bar’s Alternate Dispute Resolution Section requests authorization to file a non-party brief as amicus curiae in the case of West Central Education Association and School District of Baldwin-Woodville, pending before the Wisconsin Supreme Court. At issue is whether a grievance was timely filed under the terms of a collective bargaining agreement that was specifically put before the arbitrator for his determination.

    ADR Section Position Summary re: Amicus Curiae Brief Request (Baldwin)

    Pursuant to Section 2(a) of Article VII of the Bylaws of the State Bar of Wisconsin, the Alternative Dispute Resolution Section is requesting that the Board of Governors authorize the filing of a non-party amicus curiae brief by the Alternative Dispute Resolution Section in the pending Supreme Court of Wisconsin case of West Central Education Association and School District of Baldwin-Woodville, Case 17 No. 66317, MA-13486.

    In this case, the issue of whether a grievance was timely filed under the terms of a collective bargaining agreement was specifically put before the arbitrator for his determination. The arbitrator determined that it was in fact filed timely. Subsequently, both the circuit court and the Court of Appeals reviewed the decision using the “perverse misconstruction” standard. The circuit court upheld the arbitrator’s decision stating the arbitrator “articulated a reasonable basis for finding the grievance timely.” The Court of Appeals reversed and remanded finding that the arbitrator “engaged in a perverse misconstruction” of the collective bargaining agreement’s “plain and unambiguous language” when determining that the grievance was timely filed.

    The issues before the Wisconsin Supreme Court, as stated by Petitioner, West Central Education Association – Baldwin-Woodville Unit, are “[w]hether the Court of Appeals erroneously expanded the traditional application of the ‘perverse misconstruction’ doctrine when it vacated an arbitration award by substituting its own analysis on the issue of ‘timeliness’, a classic issue of procedural arbitrability, for that of the arbitrator.” And, “[w]hether courts may vacate arbitration awards under a perverse misconstruction standard where the parties gave the arbitrator the express authority to decide the procedural arbitrability issue and where the parties were aware of the arbitral tradition of construing timeliness broadly in order to decide cases on the merits.”

    The issues before the Supreme Court of Wisconsin in this case are appropriate for the ADR Section’s involvement. The subject matter of the case falls squarely within the field of expertise of the Alternative Dispute Resolution Section, which is comprised of practitioners engaged in mediation and arbitration as advocates and neutrals. Its members deal daily with these issues and the decision by the Court could have significant consequences for practitioners as well as parties normally relying upon the finality of arbitral decisions.

    It is essential that parties considering arbitration can rely on the fact that the procedure will be relatively expeditious, fair, and final. If parties are unable to know with certainty that the course they have chosen to resolve their dispute will be decided with finality, the presumptive result is that fewer persons will submit their issues to arbitration and will rather submit to court determination. That is not in accord with the overall philosophy of the efficient resolution of disputes and consequent reduction of court caseloads through alternative dispute resolution methods.

    If you have any questions or comments please send them to: org pubaffairs wisbar wisbar pubaffairs org by NOON on Feb. 3, 2009. Or contact org slonergan wisbar Sandy Lonergan, ADR Section Government Relations Coordinator at (608) 250-6045.