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Court Annexed Arbitration

Court Annexed Arbitration. Authorized by Congress Cases less than 100,000 Qualifications of Arbitrators set Disincentive for de novo hearing Sanctions for failure to “meaningfully participate Confidential. Med- Arb. Hybrid process Used to take advantage of best of both processes

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Court Annexed Arbitration

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  1. Court Annexed Arbitration • Authorized by Congress • Cases less than 100,000 • Qualifications of Arbitrators set • Disincentive for de novo hearing • Sanctions for failure to “meaningfully participate • Confidential

  2. Med- Arb • Hybrid process • Used to take advantage of best of both processes • Key issue is identity of neutral: the same or different? • Labor Grievances: Mediation topics can go beyond CBA ( unlike arbitration), includes advisory opinion at conclusion of mediation if no agreement, different person used for arbitration with no information from mediation admissible

  3. The Mini-trial • Private dispute resolution process • Designed to overcome the barrier related to “overestimation of success” • Hybrid process • Used in complex disputes, where time is of the essence, where business people want to be actively involved in resolution and where trial would be very costly.

  4. Key Components • Selection of principals • Procedural agreement • Use of neutral advisor • Negotiation by parties

  5. Discovery Issues • How much? Too much is expensive, not enough leaves parties wondering about what is missing? • Modified discovery: use of partial deposition • Neutral advisor can be used to resolve discovery disputes

  6. Hearing • Evidence presented by business staff using visual aids • Live testimony unusual but may be used to bring in expert • Principals must have settlement authority

  7. Advantages • Acts as “reality orienter” for principals • Tailored negotiated agreements possible • Preserves on-going relationship • Face to face negotiation between principals may help to avoid future disputes

  8. Discovery Issues • How much? Too much is expensive, not enough leaves parties wondering about what is missing? • Modified discovery: use of partial deposition • Neutral advisor can be used to resolve discovery disputes

  9. Early Neutral EvaluationWestern District Early Assessment Program • First meeting within 30 days of last responsive pleading • Possibilities include Early Neutral Evaluation (ENE), Mediation, Non-binding Arbitration , Settlement Conference

  10. Key Features • Early meeting to define issues, consider views of other side, consider projected costs, consider methods for resolving dispute. • Most become a mediation with the Program Administrator, Kent Snapp • Parties must attend • Random testing established the success of program in terms of both cost and time savings.

  11. SUMMARY JURY TRIALS • Court Process • Jury impaneled • Brief presentation of evidence, no objections • Jury “Verdict” • Discussion with jury • Settlement negotiations usually with judge

  12. Advantages • Reality Orientation • View other sides evidence • Obtain jury perception • Counsel can stipulate that result will be binding

  13. Disadvantages • Mandatory nature may require disclosure of trial strategy • No opportunity for impeachment • No evaluation of credibility of witnesses

  14. Mandatory Settlement Conferences • Rule 16 • Appropriate role of judges • Concerns re: coercion • Quality of settlements • Efficiency concerns

  15. Private Judging • Statutory authority • Private process • Judge must follow substantive and evidentiary rules • Judgment is binding, but subject to regular appeal process • Judge Judy is example

  16. Selection of judge Speed private “Rich man’s” justice Closed to public “Brain drain” Advantages Criticisms

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