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ARBITRATION ARBITRATION Arbitration Key

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ARBITRATION ARBITRATION Arbitration Key Powered By Docstoc
					ARBITRATION
             Arbitration
          Key Characteristics
• Informality resulting in greater speed, less
  cost
• Choice of Decision maker
• Privacy
Private Arbitration

Court – Annexed
  Arbitration
         Uses of Arbitration
• Commercial: Parties create process; trade
  association rules; AAA panel and rules
• Labor- 95% of CBA
• Medical malpractice
• Major League Baseball
          History of Arbitration
•   Ancient process : rabbinical tradition
•   18th century commercial disputes
•   Colonial America
•   20 th century -Statutory authorization
       New York 1920- pattern for UAA
       Federal: USArbitratuion Act 1925.
                 Railway Act- 1926
                 Taft Hartley Labor-Management
                     Relations Act-1947
  Initiating Arbitration

Contract clause to arbitrate future
            disputes
 Alternative for current dispute
              Arbitrability
• Presumption of Arbitrability
• Court review of whether or not dispute is
  covered
• Defenses: Fraud in inducement re:
  arbitration clause
• Fraud in underlying contract decided by
  arbitrator
    Judicial Review of Awards
• Under both UAA and Federal law, review is
  extremely limited.
• Standards: Corruption, fraud or misconduct
  by arbitrators.
• “Manifest disregard” of law as opposed to
  erroneous interpretation.
• Labor: “Draws its essence from contract
    Missouri Act: Chapter 435
• Adopted in 1980: presumption of
  arbitrability
• Any controversy except contract of
  insurance or “adhesion contract”
• Ct will look to other UAA cases
• Notice Requirement: Bold face type
• Exclusion of governmental subdivisions
  applies to disputes between them.
               Variations

• High/ Low: Parties agree in advance on
  limits of loss/ recovery
• Final offer: Major league Baseball
• Incentive:
• Not binding but penalty for rejection
    Concerns about Arbitration

• Adhesion: credit cards, banks, medical
  malpractice
• Bias of arbitrators towards repeat players.
• Waiver of court review of civil rights
  claims.
• Role of Arbitrator: Judicial v. Mediative
Amanda & the Hospital

 How would you advise her?
          Other perspectives
• What suggestions are offered by Hayford &
  Peeples to improve commercial arbitration?

• What conclusions does Maltby reach about
  the efficacy of arbitrating employment
  cases?
            Med-Arb

What are the advantages of this process
over simply mediation or arbitration?

       What are the limitations?
            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
  Advantages                 Criticisms
• Selection of judge   • “Rich man’s” justice
• Speed                • Closed to public
• private              • “Brain drain”

				
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