Many of us have considered a situation where the same person is asked to both mediate and arbitrate a dispute. The conventional wisdom is that arbitration must come first since the mediator could receive confidential communication or information that might be inadmissible at the arbitration hearing or just not offered or revealed by the party in question. The other side is that arbitration is every bit as expensive as a trial, in some cases more so when you add in the administrative fees of some of the organizations facilitating it. Therefore, mediation should come first because it would save the expenses associated with a full-blown arbitration hearing. Furthermore, many mediators, (me included), don’t want to hear confidential information in the private sessions anyway because if… read more →
As a civil district judge, I always figured I had less of a chance of being shot by an angry litigant (in or outside of the courtroom), than did my colleagues hearing family law cases. And I suspect that violence is more likely to occur in family mediations than in any other type of case. But what is a mediator’s responsibility when violence or the threat of it occurs? One option is to end the mediation and send everyone home, but when does blowing off a little steam, (venting as it is called ), become an actual threat to the participants? One could call the police, but timing is everything, you don’t want to call too soon or too late. One thing is for sure, breaking up a fight… read more →
Just returned from my first trip to Panama and what an eye-opener! If you think this is just another banana republic you are sadly mistaken. It boasts a thriving economy, based on the U.S. Dollar, and almost total employment. But the greatest thing was this: I heard more positive comments about the United States and Americans there than I ever hear at home. Self-flagellation is now fashionable in the U.S. We are racists, sexists, misogynists, homophobes, xenophobes, and islamaphobes. We invent a new “phobia” every day with which to tag ourselves. We are militaristic imperialists with a history that embarrasses us. We try to ignore it, re-write it, destroy vestiges of it, keep it from our children, and apologize for it. And pandering politicians have… read more →
IS ARBITRATION BAD FOR BUSINESS? The death of Stare Decisis Within hours after buying those heavy and expensive books, law students are introduced to what is represented as the pillar of our system of justice, stare decisis. We learn that the doctrine of stare decisis is based upon the principle that certainty in law is essential. This idea is so firmly fixed in England that the House of Lords[1] and the Court of Appeal[2] have held that they have no power to reverse themselves on a proposition of law, no matter how erroneous their previous decision may appear to have been. In fact, as law students we are directed to the library where row and after row of books are housed at great expense… read more →
Yes. Arbitration is a matter of contract and the existence of an agreement between the parties is what accords the arbitration process its special stature. The U.S. Supreme Court has said that the purpose of the Federal Arbitration Act, (FAA), was to put agreements to arbitrate on the same footing as other contracts and susceptible to amendment or modification like any other.[1] Therefore, parties could amend the contract, (consistent with its provisions), and agree to substitute as their ADR choice the provisions of CPRC Sec. 151 et seq. The parties may also amend an arbitration clause with a Rule 11 agreement, provided the underlying contract would not prohibit modification in such fashion.[2] One thing to consider in such amendment is that an arbitration clause is… read more →
Well, the term seemed to the legislature less ethically offensive than “rent-a-judge”, which is another way to reference the concept. Actually, to serve as a special judge under Chapter 151, CPRC, the judge, (former or retired), must have; (1) served as a judge for at least 4 years in a district court, statutory county court, statutory probate court, or appellate court; (2) developed substantial experience in the judge’s area of specialty; (3) not been removed from office or resigned while under investigation for discipline or removal and (4) annually demonstrated completion in the past calendar year of at least 5 days of continuing legal education in courses approved by the state bar or the supreme court.[1] Whether that makes them “special” is a matter of… read more →
PLAINTIFF’S COUNSEL: “We offer these 5 affidavits of witnesses whose testimony contained therein support all of the allegations in our complaint.” ARBITRATOR: “Any response from Defendants?” DEFENDANT’S COUNSEL: “We object, the affidavits are hearsay.” ARBITRATOR: “What is Plaintiff’s response to the objection?” PLAINTIFF’S COUNSEL: “This is an arbitration proceeding.” ARBITRATOR: “Objection overruled. The affidavits are admitted for all purposes.” Ok, maybe this is an exaggeration but not by much. The Alternative Chapter 151 of the Texas Civil Practices and Remedies Code, (CPRC Sec. 151.001 et seq.), entitled “Trial By Special Judge”, was passed in 1987 and provided a protocol for private trials of civil or family matters pending in a district court, statutory probate court, or statutory county court.[1] It consists of merely 13 sections… read more →
GC: “Boss, I got bad news and worse news.” CEO: “What the hell is it?” GC: “The arbitrator issued an award against us of 20 million dollars” CEO: “What? That’s preposterous, outrageous. Damn it to hell, we will appeal all the way to the supreme court if necessary” GC: “Well, boss, about that appeal… “ Be careful what you wish for. Prompted by what some considered to be “runaway” jury verdicts, commercial transactions began to include in their standard documentation, an agreement to use arbitration to resolve any disputes that might arise. The thought was that reposing such decisions to an arbitrator or panel of arbitrators would take the emotion and uncertainty of a jury trial out of play leading to more predictable results. After… read more →
