Arbitration

Arbitration is a more formal alternative dispute resolution (ADR) methodology which is also known as a “private judge”. Our neutral arbitrator takes documentation, witness statements, hears evidence then makes an award based of this information. These hearings are conducted in a private confidential setting and a final award will be issued.

A hearing is normally held with only 1 arbitrator but in larger cases it is common to use a panel of 3 or 5 arbitrators. This does affect the cost of the arbitration significantly.

Arbitration can be held with or without attorneys as the process is greatly simplified and not as rigid as court. An attorney will commonly present your case as this is familiar to them but this is not required as most decisions are based on evidence not rule of law.

How Does Arbitration Work

Arbitration Hearing

The Arbitrator “Private Judge”

  • Does not give legal advice
  • Does not represent any party
  • Explores the case strengths & weaknesses
  • Controls the hearing
  • Issues an award
  • You contact us via phone or webform
  • We assign a coordinator
    • There is no private communication with the arbitrator, this is called ex-parte communication. All parties MUST be present to discuss anything with the arbitrator. The coordinator helps when both parties are not availble.
  • Arbitrator is assigned and a type of arbitration is selected
  • A pre-hearing conference is set
    • Parties establish the rules or rule set
    • Formalize the arbitration format
    • Set award type to be issued
    • Set document and witness limits
    • Set timelines and dates for hearings
  • Documents are submitted to the coordinator
  • Motions are submitted and heard
  • The formal hearing is held
  • An award is issued by the arbitrator

Types of Arbitration Hearings

Expedited Hearing

Hearings are quick, normally within 30 – 45 days, where testimony and witnesses are limited, usually only 1 hearing day.

Common Cases

  • Contract Dispute
  • Nuptial Agreement Divorce
  • Small Business Dispute
  • Severance Dispute
  • Agreement Dispute

Full Hearing

More detailed hearings for more complex matters that may have a lot of documentation and witnesses, normally 2 or more hearing days.

Common Cases

  • Larger Contract Disputes
  • Divorces – (UFLAA)
  • Med/Lg Business Disputes
  • Constuction/Contractor Disputes
  • Insurance/Medical Dispute

Guidelines and Rule Sets

  • Ad-HOC – No Predefined Guidelines

    Ad-HOC simply means the contract or arbitration clause did not have all the details written in the beginning. In the pre-hearing conference, the parties and the arbitrator sit down and set all the rules such as:

    • What day documents are due
    • How many witnesses
    • How long is allowed for testimony (1-hour, 2-hours)
    • Rule of law (Oklahoma, Maryland, International)

    This is the most common start to an arbitration as most contracts do not spell out everything just briefly say “Disputes to be decided in arbitration”.

    We can help with everything and have a booklet we will soon publish to help you understand all these details.

  • PADR – PhloxADR Preset Rules

    This is a rule set and guidelines we have established to simplify the process and speed along the timeline. Based on your case, we set limits on number of witnesses, length of testimony, when documents are due, etc. so that you can quickly get to presenting your case.

    The parties have the ability to modify this to make it more customized to their dispute. This is a preset guideline of an average from case research.

  • List of Formalized Guildelines

    FAA – Federal Arbitration Act – (Very Common)
    TAA – Texas Arbitration Act – (Very Common)
    OUCC – Oklahoma Uniform Arbitration Act
    KUCC – Kansas Uniform Arbitration Act
    MUCC – Missouri Uniform Arbitration Act
    ICC – International Chamber of Commerce
    JAMS – JAMS Foundation Arbitration Act – (Well known by attorneys)
    AAA – American Arbitration Association – (Well known Rule Set)
    CCA – College of Commercial Arbitration – (Very Common for Commercial/Business Disputes)

Formats of Arbitration

  • BA – Binding Arbitration

    The most common type of arbitration.

    Arbitrator hears the case and makes a final binding award on the information provided.

    • Enforceable under state and Federal law
    • Collectible as a court ruling, once affirmed
    • Appeals are very limited
  • NB – Non-Binding Arbitration

    Arbitrator hears the case and makes a final award based on the information provided. This is used to establish strengths and weaknesses in a case to aid in settlement conferences.

    • NOT Enforceable
    • NOT Collectible
    • No Appeals
    • Award shows who is likely to win in court
  • BNE – Binding Neutral Evaluation

    Arbitrator hears the case and makes an evaluation to the best resolution of the dispute. Both sides will present their case and their solution, the arbitrator will choose or modify the solutions and issues an award.

    • Enforceable under state and Federal law
    • Collectible as a court ruling, once affirmed
    • Appeals are very limited

    Some places (California) call this Binding Mediation but the arbitrator will not hold a caucus and no ex-parte communications.

  • Med/Arb – Mediation / Arbitration

    This is a hybrid model

    This type starts with a mediator who resolves all the dispute possible by agreement. Whatever dispute remains goes to an arbitrator who will hear evidence and make a final award.

    The final award will include the mediated agreement as part of the award, as to make both parts binding.

    • Enforceable under state and Federal law
    • Collectible as a court ruling, once affirmed
    • Appeals are very limited

    Med/Arb takes a minimum of two (2) ADR professionals, 1-mediator and 1-arbitrator.  Mediation can hold caucuses which are private ex-parte sessions without the other party that does not get disclosed. Arbitrators can have no ex-parte communications.

  • Arb/Med – Arbitration / Mediation

    This is the above hybrid model in reverse.

    This type starts with an arbitrator who hears evidence on selected parts of a dispute and makes a final binding award. The remaining dispute, in whole or part, moves to be worked out in mediation.

    This process can be repeated, if a separate mediator and arbitrator is used. This model can use the arbitrator as the mediator.

    The parties will decide in the pre-hearing conference if the final award will include the mediated agreement as part of the award, as to make both parts binding or just the arbitrated part.

    • Enforceable under state and Federal law
    • Collectible as a court ruling, once affirmed
    • Appeals are very limited
  • MSC – Moderated Settlement Conference

    This form of arbitration is unique as the winner has already been established. The dispute is over the amount of the award, so a maximum (high) amount and a minimum (low) amount will be given to the arbitrator.

    Arbitrator hears the case and makes an evaluation to the best resolution of the dispute. Both sides will present their case and their solution, the arbitrator will choose or modify the solutions and issue an award.

    • Enforceable under state and Federal law
    • Collectible as a court ruling, once affirmed
    • Appeals are very limited

    This is common in insurance and medical settlements as the injured party wants one amount (higher) and the paying party wants a different amount (lower).  This can be used in other venues like: Divorce, buyouts, bulk sales, etc.

Types of Awards

A final award or decision will be handed down within 14 days of the hearing unless agreed otherwise.

  • Standard Award – Simplest and least expensive. A basic statement of the facts of the case with the information provided and the final award.
  • Reasoned Award – List of facts and reasons for the award decision. This holds more detail and explains how information affected the final award.
  • FFCL Award – Finding of Facts and Conclusions of Law – Very comprehensive and detailed as to the facts of the case, how they relate to the law and what the law says about these facts as presented.

Who Prefers Arbitration

Business embrace arbitration due to a final determined outcome as there is NO impasse and NO termination once the hearing is set. Once the hearing is on the way, a final award will be issued.

Records and witnesses can be subpoenaed, motion of dispose, discovery, interim relief and most anything available in a court can be used in arbitration.

Divorcing couples with high asset values seek arbitration when they cannot reach a decision in mediation. The privacy and confidentiality, quick final decisions and customized hearing dates/times work better for families. Children have less issues when the parent’s troubles are decided quickly.

Customization makes arbitration a real winner over the court room. As you see there are many thing that can be customized from the type of hearing to the type of award and from number of witnesses to the length of testimony. This saves time over the inefficient court process and less time means less expense.