A Word of Caution

2. A Word of Caution These materials are presented with the understanding that the information provided is not legal advice.  Due to the rapidly changing nature of the law, information contained in this presentation may become outdated.  Anyone using information contained in this presentation should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter.  No person should act or rely upon the information contained in this presentation without seeking the advice of an attorney.

3. Arbitration vs. Litigation: A Practical Assessment Presented By: Tracey A. Rohrbaugh, Esquire

4. What is Arbitration? Not to be confused with mediation, it is the process of dispute resolution in which a neutral third party (an arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard.

5. How Does Arbitration Work? • The parties choose the arbitrator(s) – unless already specified by contract • The arbitrator schedules the matter for hearing – works much like a normal trial would, except the arbitrator rendersthe decision • Arbitration decisions cannot be appealed

6. What is The Difference Between Arbitration and Litigation?

7. What Costs Are Involved In Arbitration? • Payment of the arbitrator ($300 - $600/hour) • Payment of a filing fee ($$$$$$) • Hiring of court reporters, etc. • Payment of your lawyers – but some contracts provide for losing party to reimburse fees

8. Important Information For Arbitration Clauses: • Make sure that the contract specifies the types of disputes to which it applies • Make sure the arbitration provision is not one-sided (if so, it may be voided for unconscionability) Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1947)

9. Is My Arbitration Clause Enforceable? • Per 9 U.S.C.§ 2, “[A] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable. . . .” • There is a liberal federal policy favoring arbitration agreements, even where there are state substantive or procedural policies to the contrary. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). • West Virginia, too, will enforce arbitration agreements. See Berkeley Co. Board of Educ. v. W. Harley Miller, Inc., 236 S.E.2d 439 (1977). However, there are many circumstances on which the Court will try to negate them. If you want arbitration, make sure the arbitration clause is bargained for, that it applies equally to both parties, and that it is clear that both parties were aware of its existence.

10. How Do I Decide If I Should Have Arbitration In My Contract? • Consider the amount of your contract – it may not be practical on small contracts • Consider whether you can afford to arbitrate • Consider whether you want your fact-finder to have specific expertise • Contact your lawyer and ask for advice

11. Thank You!

12. For more information, contact:Tracey A. Rohrbaugh, EsquireBowles Rice McDavid Graff & Love LLPtrohrbaugh@bowlesrice.com(304) 264-4202