11.5

Arbitration

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INTRODUCTION

This section discusses common aspects of arbitration. States differ in structure, but the general outlines of arbitration are fairly universal.

Mandatory, but not Binding
Most states have some form of arbitration. The common elements of all arbitration systems are:

States can require parties to go through arbitration, but they can not make the arbitration binding. The state can not take away a person's right to a trial.

Mandatory arbitration always occurs during the pretrial stage, either during or before the discovery process.

Every state provides a manner for some cases to be exempt from arbitration, such as cases over a specific minimum amount.

When the arbitrator (also called arbiter) reaches a decision, both parties have the right to have the matter sent to a trial.

There are some elements that may differ, however:

Some states allow non-attorneys to be arbitrators. Other states require arbitrators to be attorneys.

In some states, the party asking for a trial after the arbitrator's decision must pay the other side's attorney fees if s/he loses again at trial.

In some states the arbitrator is paid by the state. In other states the arbitrator is paid by the parties.

Lecture Notes . . .

ABOUT ARBITRATION
Arbitration changes from state to state. Most states have some type of arbitration program, but all of them include the following similarities:

No court sponsored arbitration system can be binding, unless the parties agree to it. In other words, the court may be able to require that parties go through arbitration, but the court cannot make it binding since everyone has a right to go to court.

Some states have experimental systems in addition to standard arbitration. For instance, Nevada has a "Short Trial" program, which is basically binding arbitration with a judge and 3-person jury. If both parties agree, there is a one-day trial with a judge and 3-member jury. The decision is binding and there is no appeal.

To find out about the arbitration process in your state, conduct a Google (or Copernic) search using this query:

mandatory court arbitration [your state]

The example on the pages in the Manual discuss the Nevada Arbitration System, which is a typical process for arbitration.

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Paralegal Perspective . . .

ARBITRATION

When mandatory arbitration began as an experiment with the courts, it seemed like a good way to lighten the burden on the courts and encourage parties to work matters out without going through a complete trial. The downside has been that in some cases attorneys have simply used arbitration as a means of increasing their own fees, charging for arbitration preparation, then charging for basically the exact same work in preparing for trial. The answer: Paralegal representation. In some states paralegals are allowed to represent a client in arbitration. All states should allow paralegals to be involved in arbitration. The problem: It would take money out of the pockets of attorneys.

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Exercise


Exercise

Arbitration