READING MATERIALS
FOR
CLASS II (4 October)
&
CLASS III (5 October)
i. The Basics ofArbitration
ARBiTRATION DEFINED
• Arbitration is a process in which disputing parties present their respective cases
by the use of evidence to a third party neutral, i.e. an Arbitrator, who renders a binding
decision on the merits. (Arbitration, by agreement, can he handled on a non-binding
basis.) The process is essentially an informal and private form of litigation and does
not involve negotiation. Virtually any case that can be litigated can be arbitrated
although cases affecting the rights of children may be subject to ongoing judicial
review.
SELECTING THE ARBITRATOR
The parties always have the right to agree on the choice of an Arbitrator. When
agreement cannot be reached, a selection process will he used.
PRE-ARBITRATION CONFERENCE
Before the arbitration begins, the attorneys and the parties, if so desired confer with the
Arbitrator, typically by phone, to cover the particulars of the arbitration: anticipated
duration, attendees, witnesses, exhibits, etc. Any other issues that are of concern to the
parties can be addressed in the pre-arbitration conference. If discovery is to he a part
of the arbitration process, it will be addressed in the pre-arbitration conference. All
these matters are handled in an informal fashion.
• At the discretion of the Arbitrator, there may be reason to schedule other pre
arbitration proceedings to streamline the arbitration hearing. If it is deemed to be
helpful, the parties may agree, or be asked, to submit prior to the arbitration various
pleadings, documents, photographs, etc.
• The attendance of witnesses and the production of documents at the arbitration
hearing may be compelled by subpoenas pursuant to governing law.
• Often the parties arbitrate subject to “high” and “low” money limits to which
the parties agree before the arbitration. Regardless of the Arbitrator’s decision, the
award is constrained by these limits established by the parties. The Arbitrator does not
have knowledge of the amounts or existence of these limits in issuing an award.
THE ARBITRATION HEARING
Arbitration is adversarial. Although it is relatively informal, arbitration is akin to
litigation.
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• At the hearing the Arbitrator first explains the ground rules. Generally, the
hearing follows the order of a trial; however, the process is informal and subject to the
discretion of the Arbitrator. The parties may give opening statements. The cases are
then presented, first by the plaintiff and then by the defendant. Rebuttal is allowed.
• The nature of the presentation of the cases is similar to a court proceeding e.g.,
swearing of witnesses, direct examination, cross-examination, submission of
exhibits. However, the formal rules of evidence do not apply. The touchstones of
admissibility are relevance and common sense.
• The parties may give closing arguments. Post hearing briefs may be used,
when needed. These matters are handled according to the wishes of the parties subject
to the Arbitrator’s discretion.
• As soon as is reasonable after the hearing, the Arbitrator will render a decision
in the form of a written award, a simple statement reflecting the resolution of the
dispute. The grounds for the decision are the facts presented and the governing
law. The right of appeal from this award is limited to those grounds embodied in the
arbitration statute that governs the case. Typically, this means that the reasons to upset
the Arbitrator’s decision would be limited to those few reasons stated in the governing
arbitration statute. Agreements affecting the rights of children may be subject to
ongoing judicial review.
THE PROS AND CONS OF ARBITRATION
The main advantage of arbitration is closure. Once the parties engage in the process,
they know that resolution will necessarily result. They also know that there is little
basis to upset the Arbitrator’s decision. In certain kinds of cases, closure may be the
overriding goal of the parties, and thus arbitration offers this benefit.
• In highly technical cases, the parties may wish to have a decision maker who is
well versed in the subject matter in question. Arbitration allows this.
• Given that discovery is limited, substantial time and costs savings may be
enjoyed in arbitration. The relaxed procedures also allow for savings.
• As compared to mediation, arbitration does not allow the parties to keep control
of the outcome, and it often does not produce the same level of benefits as mediation in
respect to cost and time savings. Nor does arbitration allow the parties to benefit from
the problem solving, relation-building processes of mediation. But, used in the right
situations, arbitration can be a valuable tool among the various modes of dispute
resolution available.
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International Arbitration
From Wikipedia, the free encyclopedia
International arbitration is a leading method for resolving disputes arising from international
commercial agreements and other international relationships. As with arbitration generally,
international arbitration is a creature of contract.
Main Features of International Arbitration
International arbitration has enjoyed growing popularity with business and other users over the
past 50 years. There are a number of reasons that parties elect to have their international disputes
resolved through arbitration. These include the desire to avoid the uncertainties and local
practices associated with litigation in national courts, the desire to obtain a quicker, more
efficient decision, the relative enforceability of arbitration agreements and arbitral awards.
The Advantages of International Arbitration
For international commercial transactions, parties may face many different choices when it
comes to including a mechanism for resolving disputes arising under their contract. If they are
silent, they will be subject to the courts.
Neutrality and Enforceability of Arbitration Awards
The ability to resolve disputes in a neutral forum and the enforceability of binding decisions are
often cited as the main advantages of international arbitration over the resolution of disputes in
domestic courts. And there is solid legal support for this view. The principal instrument
governing the enforcement of commercial international arbitration agreements and awards is the
United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards of
1958 (the “New York Convention”). The New York Convention was drafted under the auspices
of the United Nations and has been ratified by more than 140 countries, including most major
countries involved in significant international trade and economic transactions.
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The Basics of Mediation
MEDIATION DEFINED
Mediation is a voluntary, consensual process that uses a trained, neutral third party to
facilitate the negotiation of disputes. The goal is to reach a binding settlement
agreement. Typically, attorneys for the disputing parties are integrally involved
throughout the process, hut this is not a requirement.
THE BENEFITS OF MEDIATION
• Control by parties - The parties remain in charge of the outcome.
• Opportunity for better results - The parties understand their dispute better
than any court or jury could.
• Effective - Approximately 85% of cases handled by The McCammon Group
reach settlement.
• Greater compliance - Parties are more likely to comply with a mediated result
than with a judgment or an arbitration award.
• Reduced time and expense - Mediations are usually concluded within a day.
They can he scheduled within a few days.
• Voluntary, consensual process - The parties stay in control. The result is
determined by the parties.
• Preserved, improved relationships between parties - This is important where
the parties have an on-going business or personal relationship.
• Decreased stress and disruptions to ongoing activities.
• Private and confidential
• Improved skills and relationships - Mediation helps parties in future
negotiations and dispute resolution.
AGREEING TO MEDIATE
There are several ways to get to mediation.
I. Most often, one party decides it would he helpful to resolve the dispute through
mediation and suggests mediation to the other party. The other side, typically, agrees.
2. In pending litigation, the court often suggests or even orders that the parties consider
mediation.
SELECTING THE MEDIATOR
Once the parties have agreed in principle to the mediation process. counsel, or their
clients, determines which of mediators would he best suited to serve. Resumes are
available to help the parties in their selection.
The basic role of a mediator is not to render a decision hut to facilitate a negOtiation. If
the parties choose, an additional role of a mediator may he to evaluate the issues in
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dispute. These roles should be considered in picking a mediator. Additional factors to
he considered involve the individual characteristics of the mediator:
• Neutrality and integrity
• Inter-personal skills
• Experience
• Training
• Subject matter expertise, if the parties desire evaluation of the issues
• Availability
PRE-MEDIATION CONFERENCE
Before the mediation occurs, the attorneys usually confer briefly with the mediator,
typically by phone, to cover various particulars in preparation for the mediation:
anticipated duration, attendees, format of mediation, etc. If the parties and the mediator
deem it helpfLll, the parties may agree to submit prior to the mediation various
pleadings, documents, photographs, etc. to give the mediator a background in the facts
and the law of the dispute.
THE MEDIATION
INTRODUCTION
The mediator first explains the process to he utilized and establishes the ground rules.
All those in attendance sign a mediation agreement which, among other things, hinds
them to strict confidentiality.
PRESENTATION OF VIEWS
One party presents its view of the dispute. This presentation is informal and can he
accomplished in any number of ways. This can he done by the attorney and/or the
client. Pertinent documents are often presented. Cross—examination is not used nor are
any rules o1 evidence or procedure utilized. The other party (or parties) then responds
in kind. Each party is free to respond until i is satisfied that its views have been fully
presented.
PROBLEM SOLVING/NEGOTIATING STAGE
The parties and their counsel, working with the mediator, then initiate negotiations.
The mediator focuses the parties on solving problems.
While the legal and factual aspects of the dispute continue to he relevant in the
negotiation, the possible solutions may involve extra—legal issues, including business
and personal matters. These non—legal matters are often at the heart of the dispute. yet
they cannot he adequately addressed in a courtroom.
The negotiations continue until successfully completed or until an impasse is reached.
The presence of a decision maker for each party is critical to these negotiations.
Often, these negotiations and problem solving activities involve private caucusing
among the mediator, one party and its attorney. Anything identified in a caucus as
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International Arbitration
From Wikipedia, the free encyclopedia
International arbitration is a leading method for resolving disputes arising from international
commercial agreements and other international relationships. As with arbitration generally,
international arbitration is a creature of contract.
Main Features of International Arbitration
International arbitration has enjoyed growing popularity with business and other users over the
past 50 years. There are a number of reasons that parties elect to have their international disputes
resolved through arbitration. These include the desire to avoid the uncertainties and local
practices associated with litigation in national courts, the desire to obtain a quicker, more
efficient decision, the relative enforceability of arbitration agreements and arhitral awards.
The Advantages of International Arbitration
For international commercial transactions, parties may face many different choices when it
comes to including a mechanism for resolving disputes arising under their contract. If they are
silent, they will be subject to the courts.
Neutrality and Enforceability of Arbitration Awards
The ability o resolve disputes in a neutral forum and the enforceability of binding decisions are
otten cited as the main advantages of international arbitration over the resolution of disputes in
domestic courts. And there is solid legal support for this view. The principal instrument
governing the enforcement of commercial international arbitration agreements and awards is the
United Nations Convention on Recognition and Enforcement of Foreign Arhitral Awards of
I 95X (the ‘New York Convention”). The New York Convention was drafted under the auspices
of the United Nations and has been ratilied by more than 140 countries, including most major
countries involved in significant international trade and economic transactions.
3405320.!
confidential will not be disclosed by the mediator to the other side without
authorization. The mediator will then meet privately with the other party and counsel.
RESOLUTION
A settlement agreement is reduced to writing when the parties reach agreement. If no
agreement is reached in the mediation, then the mediator will follow-up with the
parties, often through counsel, to continue to seek a resolution.
FOLLOW-UP
When a mediation session does not result in a settlement agreement, the prospect of
settlement often remains viable. In those instances, the mediator will subsequently
follow-up to keep the parties and their attorneys focused on finding a solution. By
calling, or even re-convening the parties, the mediator patiently and with perseverance
assists the parties to explore fully the potential for resolution.
THE ATTORNEY AS ADVOCATE IN MEDIATION
Mediation is not really an alternative to litigation. It is an additional method for dispute
resolution. It is often used in the context of an ongoing litigation to supplement that
process. It follows that the expanded role of attorney as advocate, counselor and
problem solver is central to mediation. Those attorneys who have recognized this fact
and have sensed the increasing demand of clients for these services have strengthened
their client relationships.
PREPARING FOR MEDIATION
The parties and their counsel are well served by appropriate preparation. Both the party
and attorney should enter the mediation with:
• A realistic view of the case; including its weaknesses as well as its strengths
• A clear understanding of the needs and goals of (he client
• An initial presentation of their viewpoint
• A willingness to compromise
PERFORMING IN MEDIATION
Then they should he prepared to:
• Listen
• Evaluate
• Explore options to he considered in the generalsession and in caucuses.
• Exploi-e and evaluate different settlement scenarios.
• Find ways to assist the other party to he flexible on critical issues.
• Explore a resolution
• Make a decision
BEING SUCCESSFUL IN MEDIATION
Being successful means getting to the best possible result with the lowest possible cost
— both emotional and linancial. The key to that result is that the decision maker in
mediation is not a judge, the lawyers. or the mediator — the decision makers are the
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parties, with the advice and assistance of counsel. Thus, the most effective approach to
mediation is likely to he based on a desire to reach a good resolution and end the
dispute, rather than the combative style that may have characterized earlier interactions
between the parties and their counsel. Being open to the possibility of crafting a
creative solution means that the result may he something that both parties can live with
more readily than if the result were imposed on them.
CONFIDENTIALITY
Generally, the interaction taking place within the mediation process is conlidential.
There are only a few exceptions to this made. This encourages a full exchange of facts,
views and feelings. However, the settlement agreement itself is not confidential unless
Sc) negotiated.
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‘flw ante ft £i Sdi3ons1 Jn
A Non-Profit Organization Dedicated to Dispute Pesolution
AGREEMENT TO MEDIATE
The undersigned parties have agreed to mediate a dispute at the Center for
Legal Solutions, Inc. with a mediator. For good consideration by mutual promises, the
undersigned parties understand and agree:
1. MEDIATION PROCESS. Mediation is a non-adversarial settlement negotiation that
can only result in a resolution if all Parties voluntarily agree.
2. GOOD FAITH. By signing this agreement, all parties pledge to cooperate and
participate in good faith in all mediation sessions and to use their best efforts to obtain a
mutual agreement.
3. MEDIATOR’S ROLE. The mediator will not act as a judge or attorney for any party
and will not offer legal advice. The mediator shall be neutral and only act to facilitate a
mutual agreement between the parties. The mediator’s opinions, suggestions or advice,
if any, shall not be binding on anyone. Neither the Center for Legal Solutions, Inc. or
any of its mediators shall be liable to any party for any act or omission alleged in
connection with any mediation conducted in accordance with this Agreement.
4. CAUCUS. Sometimes, the mediator may convene a caucus (private meeting) with
each party and their counsel for clarification of issues. Information developed during the
caucus may be confidential between such parties and the mediator, as indicated at the
time. Such information will not be shared unless permission of that party is obtained.
5. CONFIDENTIAL AND PRIVILEGED. All that occurs during the mediation process
shall be confidential and shall not be revealed in any subsequent legal proceedings or
otherwise. All parties agree not to institute any action based on the mediation or to
subpoena the mediator or the Center for Legal Solutions, Inc. to testify or produce any
records or do anything, at any future legal proceedings. If any party does so, they
hereby agree to indemnify and hold the Center for Legal Solutions, Inc. and the
mediator harmless for any liability, expense and cost, including attorney fees, incurred
by the mediator or the Center for Legal Solutions, Inc. as a result of such action. All
parties shall be bound by the confidentiality and privilege provisions of this Agreement
despite terminating their participation in mediation. All parties will also continue to be
bound by their agreement to pay for those services rendered up to the point of that
party’s withdrawal from mediation as per the Center for Legal Solutions, Inc.’s Fee
Policy. Facts, documents or other things otherwise admissible in evidence in any
subsequent legal proceedings or otherwise will not be rendered inadmissible by reason
of their use in mediation.
6. COSTS AND FEES. The fees for the mediation session are in accordance with the
Center for Legal Solutions, Inc.’s Fee Policy. All fees, expenses, costs and travel time
will be split equally among all parties, unless otherwise agreed in writing. Payment is
expected at the time services are rendered unless other arrangements are made in
advance. The Center for Legal Solutions, Inc.’s contract for services is with the
attorney(s). We expect payment from the attorney regardless of client activity.
This the day of 20
Signature: Signature:
Print Name: Print Name:
For:
For:
Date:
Date:
Signature: Signature:
Print Name: Print Name:
For:
For:
Date: Date:
Signature: Signature:
Print Name: Print Name:
For:
For:
Date: Date:
Mediator Date