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Alternative Dispute Resolution
University of San Diego School of Law
Schulman, Alan

ARBITRATION
Arbitration – The Big Picture
Arbitration
– Third party neutral renders judgement
– Hears evidence and arguments
– A trail process
– Private judication
– Parties gain in arbitration to get a faster result, process rules, privacy
– Binding
– Usually enforceable by the cour
– Parties come to arbitration through a binding arbitration agreement
Arbitration vs. Litigation
– Speedy resolution
o Mostly true, but sometimes not
– Avoid costs and delays
– Escape public
– Avoid public legal precedent
o An award does normally not establish precedent
– Expert decision markers
– More satifoctory and durable solution
– Flexibility
o Risk of less procedure
– Finality
o Very limited options for review
A “suitability Screen” for arbitration, p. 459-461
– Facts: MDM is an entertainment production company, many tv series, e.g. Starscape. Fandom has a website for Stascape. MDM and Fandom is negotiating a contract which allows them to show the series online. There is advertising. MDM is planning on including in the contract numerous limitations and conditions relating to the quality of the video online
– Should MDM include an arbitration provision
– Does the party seek to secure a decision in a public setting?
o Fandom = no
o MDM = no
o (The question is if the parties want to stay out of the public. If MDM is afraid the Fandom will be guilty of copyright infringement, they might want to argue that in court)
– Does a party want to prevent the specter of a massive or unpredictable jury award?
o (You would want to be in front of a jury if you think it will help your case, e.g. if they would feel bad about a big company and unprofessional doctor)
o MDM = no, that is not a concern because they would be the plaintiff
o Fandom = yes, because they don’t have the money and it is a small company
– Is the establishment of precedent or articulation of public policy an important goal for either party?
o Fandom = no
o MDM = no
– Is a vital corporate interest or bet the company case involved that requires the full panoply of procedural protections afforded by a court, including full appellate rights?
o Fandom = it might be a vital interest, but that would lead to the jury…
o MDM = no
– Is there a need for continuing court supervision of the case or parties?
o No
– Is the selection of the decision maker an important objective for either party?
o MDM = yes
– Does the case require an understanding of complex or technical factual issues
o Maybe
– Does either party or both seek to retain unabridged appellate rights?
o MDM = No
o Fandom = Maybe
ARBITRATION AGREEMENTS, PROCEDURES AND AWARDS
Federal Arbitration Act
– Under the FAA you cannot contract the right to appeal to the normal courts
Amer

rence in the arbitration agreement
– Arbitration procedures
o Filing
o Notice
o Methods for choosing arbitrators
o Procedures for challenging the appointees
o Prearbitration conferences
o Elements of the hearing
o Arbitral awards and remedies
o Procedure for publication and clarification
– Arbitration institutions
o Publish arbitration rules
o Maintain lists of arbitrators
Panels of Arbitrators
– When an institutions rules are chosen the institutions panels of arbitrators normally follow
– The institution provide names, resolves conflicts of interest and replace arbitrators
Administrative support, see p. 467
Ad Hoc Arbitration vs. Arbitration Supported by an Institution
– Depends on the situation
– Institution might be expensive, but experienced
– Is the parties experienced and able to choose and experienced arbitrator?
Scope of the arbitration agreement
– Only those issues that the parties have agreed to arbitrate will be subject to the process
– Agreements are often broadly written and will be interpreted broad under the Federal Arbitration Act (FFA) by the courts