July 01, 2012

Washington News Briefs

MEDIATION WEEK: The ABA, which recognizes the third week in October as “ABA Mediation Week,” asked President Obama last month to issue a presidential proclamation designating Oct. 14-10, 2012, as Mediation Week this year to promote the greater use of mediation to resolve legal and other disputes. The association also urged Attorney General Eric H. Holder Jr. to officially commemorate Mediation Week at the Justice Department. “Mediation affords parties meaningful access to justice in a manner that is almost always less expensive and more timely than traditional court processes,” ABA President Wm. T. (Bill) Robinson III wrote to the president and attorney general. He emphasized that the designation of Mediation Week and the ABA’s longstanding support for mediation and other types of alternative dispute resolution (ADR) are consistent with the federal government’s well-established policy favoring the greater use of ADR. A presidential memorandum issued in May 1998 encouraged federal agencies to use ADR, and the government has taken steps since then to promote greater use of mediation, voluntary arbitration, early neutral evaluation, agency ombuds, and other ADR techniques. The ABA, Robinson explained, is working with cooperating partners in state, local and international bar groups, law schools and mediation organizations to conduct educational events in cities around the world to promote mediation as a model for peaceful resolution of disputes. This year, he said, cooperating partners are being urged to consider focusing Mediation Week events on the topic of “Mediation in the Mainstream: From the Courthouse to the Conference Room” to highlight the many faces of mediation and how mediation is used in personal, commercial, government and community disputes. 

PRIVILEGED INFORMATION: The Consumer Financial Protection Bureau (CFPB) issued a final rule June 28 on “Confidential Treatment of Privileged Information,” which states that when banks and other supervised entities submit privileged information to the CFPB during any supervisory or regulatory processes, those submissions will not waive attorney–client privilege or work product protection as to any third party. During the comment period on the rule when it was proposed, the ABA expressed concerns that because the proposed rule is based in part on the CFPB’s unfounded claim that it could compel the production of privileged information during examination, the rule would not achieve its stated objective of protecting the privileged status of that information once it is submitted to the CFPB. The ABA comments also warned that the adoption of the proposed rule could cause, rather than discourage, litigation over the bureau’s alleged authority to compel production of privileged material. The ABA and other groups, including the U.S. Chamber of Commerce, are urging Congress to promptly enact H.R. 4014, which would create a single consistent standard for the treatment of privileged information submitted to all federal agencies that supervise banks, including the CFPB. The House passed the bill by voice vote on March 26, and the legislation is pending on the Senate calendar.

LAW OF THE SEA TREATY: The Senate Foreign Relations Committee held its third and final hearing for this Congress June 28 on the Law of the Sea Convention, a treaty providing a legal framework for use of the oceans. The hearing focused on how ratification of the treaty would strengthen U.S. business and industry interests. Thomas J. Donohue, president and chief executive officer for the U.S. Chamber of Commerce, testified that companies will be hesitant to take on the investment risk and cost to explore and develop the resources of the sea – particularly on the extended continental shelf – without the legal certainty and stability that access to the Law of the Sea treaty provides. The Obama administration strongly supports ratification, and Secretary of State Hillary Clinton and Defense Secretary Leon Panetta testified last month in favor of the treaty. During the June 28 hearing, committee Chairman John Kerry (D-Mass.) said accession to the treaty is necessary because “American competitiveness, American jobs are at stake.” Since the United States is on the outside of that agreement, he said, U.S. interests abroad are hindered because “we cannot take advantage of the legal roadmap” provided by the convention. Witnesses representing numerous industries supported ratification because the “benefits far outweigh the costs.” The ABA has long supported the Law of the Sea treaty, and ABA President Wm. T. (Bill) Robinson III, in a statement submitted June 14 to the committee, urged the members to forward the treaty to the full Senate for a vote before the end of the year.

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