ALTERNATIVE DISPUTE RESOLUTION
Written by Paul Dubow*
California courts and the Ninth Circuit issued 64 published decisions involving ADR in 2021, two more than last year’s record high, which had been the highest total number of ADR cases in recent past. Curiously, neither the California nor United States Supreme Court issued opinions involving ADR. However, the United States Supreme Court issued a writ of certiorari on an unpublished decision.1 A discussion of the most significant decisions of the intermediate courts follows.
The Court of Appeal and the Ninth Circuit each issued decisions this year applying and, to a degree, clarifying the Ninth Circuit’s holding in Monster Energy Company v. City Beverages LLC,2 in which the Ninth Circuit vacated an award issued by the Judicial Arbitration and Mediation Service (JAMS) on the ground of evident partiality. The arbitrator, who revealed that he had an ownership interest in JAMS, did not reveal that the winning party had participated in 97 arbitrations before JAMS over a five-year period. The court held this rate of business dealing was hardly trivial, regardless of the exact profit-share, and created an impression of bias that required disclosure.3