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: pubaffairs@wisbar.org by NOON
on Feb. 3, 2009. Or contact Sandy Lonergan, ADR Section
Government Relations Coordinator at (608) 250-6045.
