• Increasingly Courts are requiring that parties attempt to settle their differences through some form of ADR.
  • Most states have adopted programs that allow them to refer certain types of cases for negotiation, mediation, or arbitration.
  • In some places (Hawaii and California) certain types of cases are mandatorily to be settled by mediation and nonbinding arbitration, usually involving less than a specified dollar amount.
  • If one of the parties fail to reach the agreement, then the case will be heard by the court.

 

Court Annexed Arbitration – Arbitration mandated by the court.

Not all disputes will go to arbitration (issues involving title to real state or when court’s equity power is involved)

  • in Voluntary Arbitration, the court unlikely will revise the decision. the Award is usually final.

 

It differs from the voluntary arbitration.

1)Different standard of court review – a fundamental difference is the finality and reviewability of the award.

  • Any party may reject the award for any reason. If one of the parties reject it, the case will go to trial. The court will reconsider all evidence and legal question (to hear the case de novo)
  • The party who rejected it may be penalized with the court costs.

2)Dicovery – In Court Annexed Arbitration discovery occurs before the hearing. If a party seeks to discover new evidence, he/she needs approval from the court.

3) The role of the arbitrator – it is usually the same in both types of proceedings.

4) Which rules apply – It varies among states.

5) Waiver – If one party fails to appear at, or participate in, the arbitration proceeding as directed by the court however, that failure constitutes a waiver of the right to reject the award.

 

Court-related MediationToday, more court systems offer or require mediation, rather than arbitration as an alternative to litigation

  • It is often used in disputes relating to employment law, environmental law, product liability and franchises.
  • Important advantages for business are its lower cost (around 25% less than litigation), the speed with which a dispute can go through mediation (1 or 2 days)
  • The popularity lies in the fact that mediation goal is to work out a solution that benefits both sides

Summary Jury Trialsit is a mock trial that occurs in  a courtroom before a judge and jury

  • evidence is presented in an abbreviated form along with each side’s major contentions.
  • The Jury presents a veredict.
  • The difference between it and a trial – In summary the jury’s verdict is only advisory.
  • Its goal is to give each side an idea of how it would fare in a jury trial with a more detailed presentation of evidence and argument.
  • At the end, the judge meets with the parties and encourage them to settle their dispute without going through a standard jury trial.
  • The United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards assists in the enforcement of arbitration clauses, as do provisions in specific treaties among nations.
  • The AAA provides arbitration services for international as well as domestic dispute.
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