Well, it's more than can be covered in this session, but let's start.
- Commercial arbitration (CA) is unlike labor arbitration.
- It is a VOLUNTARY process of Alternative Dispute Resolution "ADR."
- Parties cannot be compelled after-the-fact to arbitrate a dispute.
- But, once they have agreed to arbitrate, the decision is typically FINAL.
- Final means FINAL...almost no ability to appeal.
- The decision of the arbitrator is called an "Award."
- "The parties control the process."
- This means that they already specified how the dispute will be resolved.
- They typically do this in their original agreement(s).
- But, once a dispute comes up, they can still decide to arbitrate.
- They also determined what laws or business customs will be used.
- They chose rules for arbitration.
- These are often published rules of a CA professional body.
- But they can be others that have been agreed.
- CA is a REQUIREMENT to DECIDE a dispute.
- If there is PANEL of arbitrators, usually each side chooses one arbitrator.
- Then those two arbitrators choose a third arbitrator.
- That person is typically the Chair of the panel.
- ALL the arbitrators must act as neutrals.
- They do NOT represent the disputant that appointed them.
- The party initiating the ADR is called a "Claimant."
- The other side...or sides...is/are "Respondent(s)."
- It is possible to have multiple Respondents, just like in Court.
- And, there can well be a "Counter Claim."
- This is not an excercise to cut the baby in half.
- CA does not make anyone compromise.
- The Award is based on the laws governing the parties' agreement.
- The process is PRIVATE...no guests, no visitors, no "friends" & no press.
- Lawyers typically MAY represent their clients.
- Disputants must advise the arbitrator that they have legal representation.
- The arbitrator ensures that all the disputants know if lawyers will attend.
That's enough for now.
Future posts will discuss how to select an arbitrator, if there should be a panel, and how to "frame the claim."
We will discuss what to say...AND WHAT NOT TO SAY...when talking to a potential arbitrator.
We will talk about what to look for from attorneys appearing before arbitrators.
We will talk about powers to sanction, to subpoena, and enforcement of the award.
We will distinguish arbitration from mediation, concilliation, negotiation and litigation.
We will talk about arbitral error and misconduct by the arbitrator.
We will certainly discuss costs, benefits and pitfalls.
I welcome your feedback.
David Harding, Chartered Arbitrator
http://www.theportablegavel.com/
