Does the dispute have any of the following characteristics? If so, put
a "check" in the appropriate box.
1. The parties have reached their maximum authority for purposes of negotiation.
COMMENT: Whenever the parties have additional
authority for movement they should consider mediation first. When
the parties have reached their final offer and demand, arbitration may be
the preferred option.
2. The parties want a binding resolution of the matter.
COMMENT: When parties want a non-binding resolution,
mediation is the preferred option. When parties are anxious to have a binding
resolution of a matter, arbitration can be sought.
3. The parties believe that the case involves fairly straightforward legal
and/or damage issues.
COMMENT: Arbitration can involve a full hearing,
much like in the courtroom. Alternatively, arbitration issues can be submitted
with written briefs only to the arbitrator and a hearing can be waived.
4. The parties want a decision in a short period of time.
COMMENT: Hearings can be set up fairly quickly.
Therefore, the parties can easily have a binding decision within 45 to 90
days from the date the case is submitted. Parties may request that the arbitrator
make an immediate ruling at the conclusion of the hearing. Parties can also
request the expedited hearing process available at USA&M.
5. The parties want the rules of evidence to be more flexible.
COMMENT: Arbitration involves rules which can
be amended or modified by the parties themselves; thus, if the parties want
the rules of discovery to be made more flexible they can do so. See USA&M Rules of Arbitration for general guidelines,
and keep in mind that the parties are the ultimate sources for determination
of the rules. (Any rules must be in conformance with the local arbitration
statute.)
6. The parties want the outcome to be within specified parameters.
COMMENT: Many parties like the "high/low"
arbitration format. In a high/low arbitration, the parties specify that
the award will be no higher than a certain amount and no lower than another
amount. The arbitrators are not usually made aware of the parameters of
the high/low, and make their awards based on the evidence. Any award which
is not within the parameters of the high/low is then reduced or increased
in order to conform with the parameters. High/low parameters are set forth
in an independent contract that the parties make prior to the arbitration.
7. The parties have been to mediation, and the case is one of the few that
did not settle.
COMMENT: Once parties have participated in
mediation, the issues have often been extensively discussed. There may be
no reason to wait to get to court and perhaps wait even longer to get a
ruling in court. Parties can proceed directly from mediation to arbitration,
perhaps with the high/low parameters based on the negotiation stances of
the parties at the conclusion of the mediation. The mediator of the case
should not usually serve as the arbitrator.
8. The parties believe a hearing would be beneficial, and a rigid hearing
like that in the courtroom may be traumatic to the clients or other participants.
COMMENT: Arbitration is much more informal
than a courtroom proceeding. The hearing can be held in a conference room
in an informal manner. This type of proceeding may be less intimidating
to parties or witnesses.
9. Parties or their counsel may wish to limit the amount of time involved
in the arbitration hearing.
COMMENT: Parties can specify at the beginning
of the arbitration process, through the arbitration contract, that each
side will have a specified amount of time in which to present their case.
This often encourages parties to get to the heart of the issues earlier,
and to conduct whatever discovery is necessary only for presentation of
the most critical matters, thus saving discovery costs.
10. The parties may have agreed on a specified amount of damages, but issues
of liability must first be decided.
COMMENT: The parties may ask the arbitrator
to make a binding award with regard to liability. For example, the arbitrator
may determine percentages of liability to be allocated to each party. Once
the percentages of liability have been determined, the parties often are
willing to agree on a specified amount for damages.
11. The parties need a binding determination on one issue in order to proceed
with other issues in the case.
COMMENT: Often it is one issue that is the
"stumbling block" to parties' resolving a case. By having an arbitrator
make a binding award with regard to a certain issue, the parties may then
proceed to negotiate the remainder of the case to settlement.
12. The parties may want an advisory opinion rendered by a former judge
or respected attorney.
COMMENT: Arbitration need not be binding. All
of the rules of arbitration and procedures associated therewith may be carried
out on a non-binding format. In a non-binding arbitration, the arbitrator
will give an advisory opinion only.
13. The case involves a large number of plaintiffs whose percentages of
recovery must be determined.
COMMENT: An arbitrator can hear evidence and
decide what percentage of a recovery each plaintiff is entitled to receive.
This can expedite settlement negotiations by the plaintiff's attorney(s),
and avoid further problems in determination of each plaintiff's percentage
of recovery. The plaintiffs simply agree prior to the arbitration that they
will be bound by the percentage of recovery awarded by the arbitrator. The
attorneys then proceed to negotiate a settlement on behalf of all the plaintiffs.
