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Arbitration Procedures
Arbitration is a formal mechanism for resolving disputes that differs from litigation. Hearings are conducted by arbitrators rather than by judges and are not limited by strict rules of evidence. They can consider all relevant testimony when making an award, including some forms of evidence (e.g., hearsay, questionable copies of documents, etc.) that would be excluded in a regular court, Arbitrators have the authority to hear witnesses out of order. Their decision is usually final and unappealable. (Note: Limited circumstances for appeals are mentioned later in this section.)
To obtain an arbitration the law requires both parties to agree to the arbitration process beforehand in writing to prevent claims of unfairness by the losing side. Typically in an employment contract, lease, loan agreement, or other document, the relevant clause may state some version of the following:
"Any controversy or claim arising out of or relating to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof."
Advantages of Arbitration
Expense. Substantial savings can be achieved through arbitration. Attorney fees are reduced because the average hearing is shorter than the average trial (typically less than a day versus several days). Time consuming and expensive pre-trial procedures, including depositions, interrogatories, and motions, are usually eliminated. Out-of-pocket expenses are reduced because stenographic fees, transcripts, and other items are not required.
Time. Arbitration hearings and final awards are obtained quickly; cases are usually decided in a matter of months, compared to several years in formal litigation.
Privacy. The arbitration hearing is held in a private conference room, rather than a courtroom. Unlike a trial, the hearing cannot be attended by the general public.
Expertise of arbitrators. Arbitrators usually have special training in the area of the case. In a breach of an entertainment contract dispute, for example, arbitrators serving on the panel are typically respected lawyers or other professionals with significant experience in the entertainment industry. Their knowledge of trade customs helps them identify and understand a problem more quickly than a judge or jury.
Increased odds of obtaining an award. Some lawyers believe that arbitrators are more likely than judges to split close cases down the middle. The theory is that arbitrators bend over backwards to satisfy both parties to some degree since their rulings are final and binding. This tendency to compromise, if true, benefits claimants with weaker cases.
Copyright 1998 Steven M. Sack
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