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This graduate level introduction to arbitration is designed to inform the
student of the basic definitions and skills involved in Arbitration
both administered and un-administered.
Arbitration is the process by which parties present their conflicts
to a third party neutral who acts as a private
judge. It is an adversarial
approach aimed at replacing the judicial system with a fast and
final resolution of disagreements.
The role of an arbitrator is to find justice and to rule swiftly and
impartially. In this class students
will be taught the basic skills necessary to conduct a preliminary conference,
issue prehearing orders, establish a discovery schedule, resolve discovery
disputes, deal with attempted delays, preside at an arbitration hearing,
render the award and avoid prejudicial conduct during the hearing and after
the award. The students will
also be oriented towards real life application of the skills taught in the
program and impressed with the incredible importance of ethical conduct.
You will learn:
How to conduct a preliminary conference, issue prehearing orders and resolve pre-hearing matters, including discovery and delays.
How to conduct and preside at an arbitration hearing.
How to render an arbitration award and how to avoid prejudicial conduct.
How to market your services.
Stephen R. Marsh, J.D.; resume at http://adrr.com/smarsh/smresume.thm; e-mail at firstname.lastname@example.org.
1. Basic Skills For The New Arbitrator, ISBN 0-9670973-1-2.
2. Marketing Without Advertising, by Michael Phillips & Salli Rasberry, ISBN: 0-87337-369-3
3. Handouts Collection (masters to be photocopied at SMU Bookstore), includes: Administered and non-Administered Mediation Rules (JAMS and AAA); Selected State Bar Association Materials, and a rewrite of materials at http://adrr.com/law0/pr6a1.htm.
Regular attendance is very important in this course and a function of grading from two separate perspectives. First, after six (6) unexcused class hours (hours, not absences) a student is subject to a grade of F. Class hours missed due to an illness or work conflict will be excused, subject to the instructors sole discretion. Students agree to binding arbitration of any conflict with the arbitrator of the instructors choice and at the students expense should an appeal be taken from the sole discretion of the instructor. Expect to present documented proof of the reasons for any and all absences.
Second, students will automatically fail the course after twelve (12) hours of class have been missed for any reason. Also, a student will be considered tardy if the student is late by thirty (30) minutes or more. If the roll has already been taken, the tardy student bears the responsibility of calling the instructors attention (after class) to the students attendance. Failure to do so may result in an attendance roster result of an unexcused absence for the entire class period.
This policy follows the policy manual policy and is intended to conform strictly
with the guidelines set by SMU and required of instructors.
Students desiring to observe a religious holy day, which will result in a
class absence, must notify the instructor in writing no later than one week
after the first day of the semester in which the absence will
occur. Students will be required
to complete any assignments or take any examinations which may have been
missed as the result of the absence within a reasonable time.
Students are urged to consult with an instructor before withdrawing from this course, however it is the students responsibility to withdraw from the course if necessary. Failure to follow SMUs prescribed procedures will result in the student receiving a performance grade, usually an F.
Be punctual. Class will begin on time.
Breaks will be granted, but students must return on time.
Attendance is mandatory and roll will be taken. NOTE. One of the areas of questions, which will be on the final, are those which cover where the instructor and the manual disagree. Failure to be in attendance and paying attention when those areas are covered will result in failing the final.
Beepers and cellular phones are to be turned off during the class.
Be prepared to participate.
Your grade will be modified by your responses when called upon.
Professional respect and courtesy are expected.
NOTE: of the various ADR procedures,
Arbitration is the most demanding and unforgiving and the closest to a real
trial. While you will be graded
as in any other class, examples of behavior that could result in disqualification
or in summary results will be noted for educational purposes.
A final and a project, as well as attendance and participation are required.
The following components will comprise a student's course evaluation:
The final grade will be calculated as follows:
|A, A+||Excellent Scholarship|
|C+, C,C-||Fair Scholarship|
|NC||No Credit Received|
Every student is expected to adhere to the Honor Code when doing all assignments and in taking all tests, whether in class, the law library, or any other location.
ANY FORM OF CHEATING OR PLAGIARISM WILL NOT BE TOLERATED AND WILL RESULT IN EXPULSION FROM THE CLASS.
Students will be required to display name identification at every class.
The syllabus is subject to change at the
Distribute handouts for review next class.
Stress that students should write down questions that come to them during the week and present them at class.
1. What kinds of arbitration are there?
2. What is the difference between Mediation and Arbitration?
3. When do parties agree to arbitrate?
4. What about preemption? It is the law of the land.
5. Are all arbitrators lawyers? No.
6. Why do some cases have more than one arbitrator?
7. Rules of Evidence, which ones do I need to remember?
8. What issues are involved in initial intake?
9. What is disclosure and what is disclosed?
10. What documents are required to open an arbitration file?
11. What is the scope of the arbitration?
12. Avoiding ex parte contact.
13/14 The Preliminary Conference.
Questions that class members have written down or have from prior classes.
Update Syllabus for class members.
Review handouts from last session.
Distribute this sessions handouts and supplemental materials.
15. Using letters to contact parties, paper trail concepts.
16. Proper facility use, design and concepts.
17. Even arbitration can be informal.
Note, the preliminary hearing will:
18. Venting, not just an experience for mediation.
19/20 Discovery and schedules.
21. Itemizations, uncovering counterclaims, exchanging expert reports, will the parties use a court reporter, will they file briefs, will they want to argue their case.
22. What about encouraging settlement - when should I tread gently and why?
23. Should the arbitrator attempt to mediation or otherwise cause people to question his or her neutrality and why is that such a terrible thing.
24. Does my instructor really agree with such a narrow minded approach?
Yes. Without doubt.
25. What about moving from arbitration to med-arb?
That is a completely different story (note, this discussion will have been put off until this topic can be addressed at this point. Students will have multiple med-arb questions up to this point that will have been put off).
Discussion and points.
26. When to hold preliminary conferences in your office, when by telephone.
27. The need to use writings (see point 15 above, again).
28. What about pro se parties?
29. Remember to include all the necessary parts in your scheduling order and remind the parties about them.
30. Subpoenas, pendant arbitration vs. independent arbitration.
31. Discovery disputes. Where there are lawyers, there will be disputes.
32. Relevancy, privilege, relevancy and Privilege.
33. Failure to abide subpoenas.
34. Other rules about subpoenas, witnesses, etc.
Questions 35- 50.
35. "Asking for a note from their mother" - or dealing with delays.
36. What is good cause - if they don't agree and one of them isn't dead, it usually is not good cause. Take the time to explore the reasons and listen, but in the final analysis, ask for the documents - the "note from a parent" - that support the claimed reason.
37. Revisiting the concept of appropriate facilities. A hearing room, caucus rooms, rest rooms and a place to withdraw. The use of hotel meeting rooms and suites and similar facilities.
38. Seating the parties so that the witnesses are closest to the arbitrator.
39. Procedure: opening statements, claimant presents their case, respondent presents their case, rebuttals, closing argument (perhaps by briefs).
40. The importance of demeanor and calm. (This subject will be reprised). You are dealing with people having a dispute and you are the calm in the eye of the storm.
41. Argument: anything an attorney says, demonstrative evidence. Testimony: what the witnesses say under oath.
42. When an attorney falls in love with their own voice:
Remember, you need to be both calm and diplomatic, whatever happens.
43. Only allow the parties, the attorneys and perhaps an expert in the room. Witnesses testify more truthfully if they have not had the chance to listen in on the testimony and to adjust to what they've heard.
A discussion on the various ways to suborn perjury.
44. "The rule" or "the rule on witnesses" - reprising excluding those witnesses. In addition, you will usually exclude extraneous persons (interns, students, etc.).
45. Remember, the arbitrator's preferences control unless the parties have a very strong preference.
A discussion on parties being able to agree on rules and when and why people should be allowed to pay for what they want.
46. Avoiding ex parte contact in rest rooms, halls, and before and after hearing sessions by introducing staff, arriving after everyone is seated (using that place of respite mentioned above), having the parties leave together.
A discussion of not using restrooms as informal conference rooms.
47. Dealing with pro se parties, you are a neutral, you are not there to be suborned.
48. Records, court reporters and allowing the parties to pay for extras if they really want them. Policy reasons against court reporters in arbitration.
49. Using a transcript - why you might want one, why you might want to avoid one.
50. Revisiting the issue of court reporters and allowing the parties to pay for extras if they really one them. See number 45 and number 48-49 above.
Handling an ex parte contact
Every class member should either be involved in the contact or be the arbitrator (use groups of three - one arbitrator caught without a secretary, the caller and the other party).
Review marketing, contact, and other issues.
Dealing with persistence, channeling callers into written correspondence
and into joint calls.
Answer questions, remind students to write down questions and to ask them at the beginning of class (and reprise this at the end for questions that were forgotten. With encouragement students are very good at remembering their questions).
Introduce emotional centering (how to be calm, centered and responsible). Reframe a current issue in order to illustrate the power of reframing. (E.g. "The heavy petting scandal" - not a commentary but as a reframing example. Affirmative action admissions in Ivy League Schools [this illustration is not necessarily accurate for non-Ivy League programs] - how the students are top 20% to top 30% of the students admitted, but reframed into the bottom 5% and thus post graduation actually underperform not only the vast bulk of the students [legacy students] but also underperform athletic scholarship students who do not become professional athletes. The same students can be taken back from their bottom 10% results in a program like UCLA's law school and made into top 20 graduates - now that is the power of reframing).
Introduce dispute resolution skills and using them in dealing with classmates and the program. This will foreshadow the value (and the lack of value) in some professional organizations and marketing yourself to fellow students. The students are here to learn, to be responsive and calm (or to learn how to do that) and to ask questions and let instructors know whenever the instructors fall short in teaching.
Skill assessments and feedback on issues that have developed as to skills and needs over the first five weeks of class.
(There are a number of questions, all of which are answered with a yes at the beginning of the textbook materials).
51. Should I take notes? Yes. (But. Don't share them, don't keep them after the decision is issued.)
52. May I question a witness. Yes. (But. Don't take over the questioning, wait, be patient, calm and centered). Your questions will spark a feeding frenzy many times and highlight issues for the parties.
53. If the parties seem to mis a critical issue or are avoiding an issue, can I ask the critical question myself. Yes. Your role is to determine the truth and to make an accurate ruling. You do not need to be blinded just because one or both of the parties has a weakness they are trying to conceal.
54. Mistakes to avoid.
a. If the exhibits go back to the parties, do not write on them. If you keep the exhibits (and they are to be thrown out after the arbitration), you can write on the exhibit copy that the parties will not deal with. Writing on an exhibit that the party then picks back up and uses is not a good idea.
b. Commenting. It is tempting to comment. Like the boss who tells bad jokes that everyone laugh at, you have a captive audience. Do not abuse them. This is deadly serious for them and should be serious for you.
c. Again, this is serious for them and they are paying you to take it seriously. Do not abuse them, do not allow yourself to be distracted in front of them. That is what answering machines and staff are for. If, for any reason there is an emergency that may occur, schedule around it and fully disclose it.
55. On taking witnesses out of order to keep the case moving. A procedure and a practice that occurs routinely.
56. The right to have a hearing if one party is passive aggressive and attempts to derail things by not showing up - or why you go ahead without them.
Ethical issues about excluding people who represent that they can not pay.
57. Going ahead without a party - there is still a burden of proof.
58. Testifying under oath (simple mechanics). Note on "swear or affirm."
59. Testifying under oath with an interpreter.
60. Attorneys will always act like attorneys (and will always make objections).
61. Understanding objections. The goal is to get rid of unreliable evidence and unrelated evidence. However, in arbitration, it is never error to "give the evidence the weight it deserves" rather than to exclude it.
62. Irrelevancy? - ask the attorney where he is going with the question. This is very similar to exploring needs and positions with a party to a dispute.
63. Leading? - ask yourself if the attorney is going over material no one disagrees on or if they are testifying for the witness in the area that the parties have at issue. If leading (in the area of conflict) "please let the witness tell the story in his or her own words."
64. What is hearsay? Hearsay is evidence that is not as reliable, it is also a staple of arbitration hearings. In arbitration, you listen to hearsay, you just evaluate how reliable it is.
"Please have the witness tell the story in their own words"
- when the attorney is leading (remember, the other side gets to lead hostile witnesses as long as they don't argue too much).
"Please summarize" "Lets see what we can do to keep this moving" "move it along"
- when the attorney or the witness gets too long winded (remember, be patient and let the parties have the time they are paying for).
"Where are you going with the line of questioning"
- when the questions seem to make no sense and to be completely unrelated to the matter at hand.
"I will take the evidence for what it is worth"
- for evidence that is objected to.
65. One more time, why you do not exclude hearsay.
66. Lack of foundation, or "where did this come from?" "Please have the witness explain how he came to that conclusion" "Please provide the basis of that testimony" "Why did you decide these were the facts." Lack of foundation occurs when a witness gives a conclusion when the witness has not explained how the witness got to the conclusion.
67. Documents are evidence in arbitration (without a witness to swear to them) unless there is a conflict about whether the document is what it purports to be. Some documents may be weak evidence, but in an age of photocopies (and laser printers) the issue is rarely whether or not the document is a true copy.
Concepts of exchanging exhibits before the hearing, objections to documentary evidence being raised and considered before the hearing.
Discuss the creation of self serving documents and the habits of those who create them. Documents are evidence, but they have the same weaknesses of any other evidence.
68. When in doubt, let the evidence in, but let your doubts go to the weight of the evidence.
69. Demonstrative "evidence" - argument presented as evidence. The evidence is not the demonstration but the explanation for the demonstration.
70. FRE 1004 evidence summaries. As long as the evidence (usually documents) has been made available for review, a summary is evidence. The challenge is not to the evidence, but to the weight of the evidence and the accuracy of the summary.
71. You decide based on what persuaded you.
72. "View" and why you don't engage in ex parte view.
73. Why you are not to tutor the parties or otherwise compromise your impartiality. BUT, if the evidence is confusing, suggest summaries, briefs, time lines or other organizing presentations.
74. Controlling hostile witnesses (especially the ex-employee). You are polite, firm, and a dispute resolution professional.
75. Controlling hostile parties. Just because this is arbitration does not mean that you forget dispute resolution skills and how to manage people.
The role of a graduate certificate program.
The Group v. Initiative Roleplay, initial
assignments. BBB assignments.
Questions 76-90, Recap
76. Being patient and calming when attorneys act out.
Review negotiation styles and the aggressive incompetents that make up 10% of attorneys and about 40% of all cases that are tried.
77. What to do when you discover a failure to disclose. The making of an immediate generally cures the issue.
78. The dwindling difference between fact and expert witnesses.
79. The expert: someone who knows more about the subject than you.
80. Deciding if they know more about the subject than you and if their knowledge is relevant to the issue at hand (what they are testifying about).
81. Dealing with surprise - the FRE 404(b) assumption that surprise reflects that the evidence is tainted.
82. What is a closing argument and what is it good for?
83. When do you decide to listen to the parties argue and when should you read their arguments?
Policy consideration: will arbitration save the parties money and how far should you go towards making arbitration as inexpensive as possible?
84. Decide on what facts you believe, then see what conclusions come from the facts - do not decide what conclusion you favor and then look for facts to support it.
85. Memory cues, notes and consideration.
86. Understanding the law: common sense, prior court rulings and deciding what is right.
87. Failure to render an award on time: the historic #2 reason for overturning awards.
88. How to write an award.
89. Reasoned opinions: expensive, appealable, time consuming and dangerous. Contrary opinion: they are what the parties are paying for and what they are entitled to.
90. Texas law and attorneys fees - in Texas, the winner generally gets attorneys fees as a part of winning.
Make the formal assignments on the Group v. Initiative role play, dates, times, places, and other considerations. Make certain that all parties are engaged in role reversal and that all participants write two awards.
Introduce alternative role play, the class assignment/project, and the other options for the twelve hour time period.
Review Administered Arbitration Forms, Review Alternatives
91. When is an arbitration finally over as far as the arbitrator is concerned?
92. Reprise the importance of destroying notes, exhibits (that are not returned), etc.
93. Returning and destroying.
94. Explaining yourself, one more chance to disrupt the process, impeach yourself, and create a basis for a reversal.
95. Enforcement: pendant and independent arbitrations.
96. Taking an appeal from an arbitration award (review cases handed out to class on earlier date).
97. Getting paid: the advantage of administered arbitration.
98. Getting paid: the key to successful professional endeavors.
99. Getting paid: the last word in the book.
Address general questions.
Further review of the place of a dispute resolution certificate program.
Discuss briefly Marketing Without Advertising chapter one's concepts. Also review chapter 11, chapter 13.
Discuss briefly the class project: a self
assessment and marketing plan (how will I use, and market if appropriate,
my dispute resolution skills).
Marketing Without Advertising, chapters 2,
3, 4 -- the personal recommendation method, the importance of physical
appearance, setting and explaining pricing.
Marketing Without Advertising (initial project assignments), chapters 9, 8, 12 -- helping customers find you, how to let customers know your business is excellent, designing and implementing your marketing plan.
Chapter 12 sets up the students on how to do the project. They should have about three to six hours of out of class work. Assign students to random groups (approximately 5 students per group) for informal project meetings and discussions.
Students will review each other's worksheets:
Marketing Without Advertising (chapters 5, 6, 7), Evaluate Projects.
Students will bring projects to class. Chapters 5, 6, 7, will be discussed and then there will be group evaluations of the projects.
Review for Final.
Better, what is my certificate good for? Is it magic or does it represent something tangible?
Going through training, forty hours or four hundred hours, does not transform you. A certificate, even from SMU is not magical. It is, however, legitimate, useful and valuable.
The training is useful to make what you do, better. People in the program have tripled their incomes by using what they've learned in the program as insurance adjusters, contract officers, EEOC compliance officers, in human relations programs, and in general, using dispute resolution skills to further their professional goals and skills.
Some people have also used the skills, in connection with their background training and professions, to become primarily dispute resolution professionals.
The certificate program is something tangible, but it is not magic. The program is sold, taught and provided as a way to improve your skill base, improve your professional spectrum of abilities, and adjust your focus, not as something that transforms you without any other qualifications or abilities. It makes more of who you are, it does not replace who you are.
This arbitration class fits the same place in the program as the program fits in your education. It adds to your understanding, skills and abilities. For some individuals, especially those who are doing some NASD or other arbitrations, it will fill in gaps in your training and improve your professionalism. For others, it will complete areas and aspects of your dispute resolution experience and understanding. A few will find it helpful in exploring arbitration as a party or as an arbitrator and in career development.
For all, it enhances your career, your facilities and your profession, it does not replace your career, your skills or your endeavors. While some of you will become arbitrators, or become better arbitrators, from being in this class, most will merely become better dispute resolution professionals and will reach a better understanding of all dispute resolution processes from participating in this class. That is what this class is.
So, who is better off for being a part of the
program? In spite of the number of students I have who have decided
to go to law school, that isn't on the list, but the following groups are
because I have seen them benefit from being a part of the program. The
Copyright 2000 by Stephen R. Marsh