Mediator/Arbitrator Special Master/DRB Member 1 (800) 832-6946
When Do You Select the “Hammer”?
When you Write the Contract (packing the tool box)
When a Dispute Starts (grabbing the right tool)
Private v. Court–Ordered
Strategic Considerations: Who, What, When, How & Where
Important Sources of Law:
California Arbitration Act: Civil Procedure 1280, et esq.
Federal Arbitration Act: 9 USC 1 (Also see Federal Alternative Dispute Resolution Act of 1998 (28 USC 651 (b))
State Contract Act: Pub Contract Code 10240 (Arbitration) & California Code of Regulations 1300, et seq.
Local Agency Claims: Pub Contract Code 20104.4 ($375,000)
HOA Claims Against Builders: Civil Code:1375-1375.1 - “ dispute resolution facilitator.”
Reorganized California Rules of Court: The California Rules of Court were reorganized and renumbered to improve their format and usability, effective January 1, 2007.
California Evidence Code: Sections 1115, et seq. (mediation privileges), Section 1152 (settlement discussions)
California Code of Civil Procedure: CCP 664.6 (Settlement Enforcement)
Other California Codes: Arbitration: A total of 328 code section group(s), Mediation - A total of 175 code section group(s), (e.g. CSLB Arbitration (B & P 7085). These do not include ordinances or rules of the California County, City or local agencies.)
Other US Codes: Arbitration: 318 Statutes, Mediation: 216 Statutes, Ombudsman: 120 Code of Federal Regulations.
Recent California Court Cases: John D. Shepard v. Edward Mackay Enterprises, Inc., et al, C052564, March 22, 2007 (Federal Arbitration Act Preemption of CCP 1298.7 overturning homeowner’s right of litigation) and Jeld-Wen, Inc. v. Superior Court, No. D048782, 2007 WL 16068 (Cal. Ct. App. Jan. 4, 2007), holding a California trial court does not have authority to order mediation over a party's objection where the amount in controversy exceeds $50,000.
Pending California Legislation: Legislative Bills introduced so far in the 2007-2008 Session: Mediation - 23 and Arbitration - 22 Bills
Indian Tribes: Arbitration Agreement as waiver of Sovereign Immunity
International Arbitration: 9 USC 201 (Treaty on Enforceability of Foreign Awards), California CCP 1297.11 (International Arbitrations in California), Carriage of Goods at Sea, International Chamber of Commerce, etc.
Proposed Uniform Laws – Arbitration & Mediation
The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 116th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.
UNIFORM ARBITRATION ACT (2000): This act revises the Uniform Arbitration Act of 1956, adopted in 49 jurisdictions. The primary purpose of the act is to advance arbitration as a desirable alternative to litigation. A revision is necessary at this time in light of the ever-increasing use of arbitration and the developments of the law in this area.
ENDORSED BY: American Arbitration Association, National Academy of Arbitrators, National Arbitration Forum
STATE ADOPTIONS: Alaska, Colorado, Hawaii, Nevada. New Jersey, New Mexico North Carolina, North Dakota, Oklahoma, Oregon, Utah & Washington
UNIFORM MEDIATION ACT (2001)(2003): Provides rules on the issues of confidentiality and privileges in mediation. The Act establishes an evidentiary privilege for mediators and participants in mediation that applies in later legal proceedings. It also provides a confidentiality obligation for mediators. The Act was amended in 2003 to add a section on International Conciliation.
STATE ADOPTIONS: District of Columbia, Illinois, Iowa, Nebraska, New Jersey, Ohio, Utah, Vermont and Washington
Issues in Selecting the Right ADR “Hammer”:
Size of the Dispute
Complexity of the Issues
Need for Discovery
Cost of Resolving the Dispute
Financially Crushing the Opponent
Speed of Resolution
Industry Knowledge of Qualified Neutrals
Method of Selecting the Neutrals
Who Pays for the Neutrals
Value of Privacy
“Fact” Case v. “Legal” Case
Exchange of Documents
Involvement of Experts
Venue of the Action
Location of the Hearings
The Need to Bring in Third Parties
Interest of Major Parties in Settling
Insured Losses and Bonding
The Runaway Jury
Bankruptcy of a Party
Political Considerations (Public Boards)
Judicial Review
ADR for Construction Contracts
Meet and Confer
Partnering
Mediation
Standing Neutral
Ombudsman
Dispute Review Boards
Fact Finder
Hearing Officer
Project Nuetral®
Contractual Arbitration
Standby Arbitration Panel
Private Judging
Stipulated Reference (CCP 638)
Judicially Appointed Reference (CCP 639)
Special Master
When Litigation Starts – CMS Form - 2007
Mediation (CMS Section 10. d) (1))
Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to close 15 days before arbitration under Cal. Rules of Court, Rule 3.822) (CMS Section 10. d) (2))
Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to remain open until 30 days before trial; order required under Cal. Rules of Court, Rule 3.822) (CMS Section 10. d) (3))
