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ARBITRATION

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

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ARBITRATION

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  1. ARBITRATION

  2. ArbitrationKey Characteristics • Informality resulting in greater speed, less cost • Choice of Decision maker • Privacy

  3. Private Arbitration Court – Annexed Arbitration

  4. Uses of Arbitration • Commercial: Parties create process; trade association rules; AAA panel and rules • Labor- 95% of CBA • Medical malpractice • Major League Baseball

  5. 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

  6. Initiating Arbitration Contract clause to arbitrate future disputes Alternative for current dispute

  7. 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

  8. 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

  9. 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.

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

  11. 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

  12. Amanda & the Hospital How would you advise her?

  13. 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?

  14. Med-Arb What are the advantages of this process over simply mediation or arbitration? What are the limitations?

  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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