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1. The parties have reached their maximum
authority for purposes of negotiation. |
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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. |
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2. The parties want a binding resolution of the
matter. |
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3. The parties believe that the case involves
fairly simple legal and/or damage issues. |
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4. The parties want a decision in a short period
of time. |
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COMMENT: Hearings
can be set up fairly quickly. Therefore, the parties
can often have a binding decision within 60 to 90
days from the date the case is submitted. Parties may
want an arbitrator to make an immediate ruling at the
conclusion of the hearing. |
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5. The parties want the rules of evidence to be
more flexible. |
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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. (Any rules must be in
conformance with the applicable arbitration statutes and acceptable to USA&M.) |
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6. The parties want the outcome to be within
specified parameters. |
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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 execute prior to the
arbitration. |
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7. The parties have been to mediation, and the
case is one of the few that did not settle. |
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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
serve as the arbitrator. |
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8. The parties believe a hearing would be
beneficial, and a rigid hearing like that in the
courtroom may be traumatic to the client or other
participants. |
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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. |
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9. Parties or their counsel may wish to limit the
amount of time involved in the arbitration hearing. |
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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. |
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10. The parties may have agreed on a specified
amount of damages, but issues of liability must first
be decided. |
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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. Defendants in a case could settle with the plantiff and later allocate damages through an arbitration. |
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11. The parties need a binding determination on
one issue in order to proceed with other issues in
the case. |
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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. |
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12. The parties may want an advisory opinion
rendered by a former judge or respected attorney. |
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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. |
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13. The case involves a large number of
plaintiffs whose percentages of recovery must be
determined. |
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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 attorney then proceeds to negotiate a settlement
on behalf of all the plaintiffs. |
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If you have checked one or more of the above boxes, you should consider submitting a case to arbitration.
(c) 2005, United States Arbitration &
Mediation Midwest, Inc. |