The American Bar Association Guide to Resolving Legal Disputes: Inside and Outside the Courtroom by American Bar Association

Author:American Bar Association
Language: eng
Format: mobi, epub
Tags: Arbitration, Negotiation, Law, Psychology, Dispute resolution (Law) - United States - Popular works, Practical Guides, Mediation, Attorney and client, General, United States, Family Law, Dispute resolution (Law), Interpersonal Relations, Alternative Dispute Resolution, Popular works, Attorney and client - United States - Popular works
ISBN: 9780375721410
Publisher: Random House, Inc.
Published: 2007-02-13T16:53:27+00:00

must follow precedent

must provide reasons for their decisions, in the interest of making the decision-making process transparent

are public officers, who may be accountable at the ballot box

Arbitrators have much more flexibility than judges. They:

follow the rules of arbitration, which usually are more flexible than the rules of court

are not bound by prior decisions

do not have to give reasons for their decisions

In order to help you select an arbitrator, organizations that facilitate arbitration will send both sides a list of arbitrators qualified in the area of the dispute, and will include information about the arbitrators' backgrounds. Both sides will then have time to read through the list, mark off the names of arbitrators they are unwilling to use, and order the remaining names according to preference. The parties then return their lists to the facilitating organization, which will try to appoint an arbitrator based on everyone's preferences. If the parties cannot agree on an arbitrator, the facilitator will appoint one. Provider organizations work to make sure that their arbitrators are impartial, with no conflicts of interest in the cases to which they are assigned.

The Arbitration Process

Arbitration clauses in contracts usually must set out the procedures to be used in an arbitration hearing. One of the great advantages of arbitration is that parties can create an arbitration process that meets their unique needs. They can, for example, agree to participate in binding or nonbinding arbitration. They can decide whether the rules of evidence that apply in court should apply in the arbitration hearing. Parties can take steps to make the procedures of the arbitration more or less formal, as they prefer. They can limit the decision-making discretion of the arbitrator and can also agree to limit the involvement of lawyers, or agree that lawyers should not be involved in the arbitration at all. Parties can agree on the timing of arbitration, and can place limits on the length of preparation time and the length of the hearing.

All these details regarding arbitration can be established when the arbitration clause in a contract is drafted. If two or more parties negotiate a contract, all sides have the chance to negotiate the wording and content of the arbitration clause, and can thus design an arbitration process that is fair for everyone. Of course, if one party drafts the contract and the other party simply signs it—as is often the case with contracts entered into by consumers and employees—then the arbitration process is likely to hold an advantage for the drafting party.

Despite the potential for creativity, many arbitration clauses reference the procedures established by the American Arbitration Association. In the standard arbitration format established by the AAA, an arbitration hearing feels like a miniature trial. Generally, hearings begin with a brief opening statement. Normally the party making the claim presents its case first. Both sides then describe how they think the dispute should be resolved. Witnesses are questioned by both sides, as well as by the arbitrator, and other evidence may be introduced. Finally, each side has a chance to present a closing statement to the arbitrator.

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