Arbitration and Other ADR Methods Flashcards
What law binds arbitrators?
No law! Not even the rules of evidence.
What is the scope of judicial review of arbitration decisions?
Very narrow and only as to whether the parties agreed to arbitrate, the scope of the clause, the validity of the clause, the applicability of the clause, and the statute of limitations.
What is required for an agreement to arbitrate?
Agreement must be in writing, in clear, express, and unequivocal terms. The right to arbitrate does not have to be mutual to be enforceable.
Can parties decide on the scope of what an arbitrator could decide?
Yes - the parties are free to decide the scope of the arbitration clause.
When is an arbitration clause unenforceable?
It is presumptively valid, but it will be unenforceable if induced by fraud, duress, or coercion, or if arbitration of the matter is barred by public policy.
Will an arbitration clause be valid just because the contract itself may not be enforceable?
The court is looking ONLY at the arbitration clause, severed from the rest of the contract. Only if the arbitration clause itself was the product of fraud, duress, or coercion will it be stuck down.
Once the court has determined that an arbitration clause is valid, can it reach the merits of the dispute?
No - if the arbitration clause is valid, an arbitrator will decide the validity of the entire contract.
How can a party assert their right to arbitrate?
If the case is pending, D will make a motion to compel arbitration and for a stay of the civil action.
If there is no action pending, the party will serve the other with a notice of intention to arbitrate.
If one party wants to oppose the motion to arbitrate, what can they do?
Commence a special proceeding for a stay of arbitration, in which the five threshold issues can be litigated.
What are the only three grounds on which a court can vacate an arbitration award?
- corruption, fraud, misconduct in the arbitration proceeding
- bias of an arbitrator
- arbitrator has exceeded the scope of his powers.
Can arbitrators in NY award punitive damages?
No - arbitrators in NY cannot award punitive damages.
Can a court ever require parties to engage in alternate dispute resolution?
No - but a court can recommend that parties engage in ADR.
What is mediation?
Non-binding, neutral mediator facilitates in a confidential setting. The parties agree in a mediation agreement about the confidentiality of what’s said during mediation.
What is neutral evaluation?
Non-binding, neutral expert gets a condensed presentation on the merits by both parties. That expert evaluates the presentations and predicts how the case will be decided. The goal is to help parties settle.
What is a summary jury trial?
It is a condensed non-binding (unless by agreement) jury trial, in which each party is limited to a few hours to present their cases. Technical evidence rules are relaxed. The goal is to help the parties settle.
