ARBITRATION

Arbitration Key Characteristics Informality resulting in greater speed, less cost Choice of Decision maker Privacy

Private Arbitration Court – Annexed Arbitration

Uses of Arbitration Commercial: Parties create process; trade association rules; AAA panel and rules Labor- 95% of CBA Medical malpractice Major League Baseball

History of Arbitration Ancient process : rabbinical tradition 18 th century commercial disputes Colonial America 20 th century -Statutory authorization New York pattern for UAA Federal: USArbitratuion Act Railway Act Taft Hartley Labor-Management Relations Act-1947

Initiating Arbitration Contract clause to arbitrate future disputes Alternative for current dispute

Arbitrability Presumption of Arbitrability Court review of whether or not dispute is covered Defenses: Fraud in inducement re: arbitration clause Fraud in underlying contract decided by arbitrator

Judicial Review of Awards Under both UAA and Federal law, review is extremely limited. Standards: Corruption, fraud or misconduct by arbitrators. “Manifest disregard” of law as opposed to erroneous interpretation. Labor: “Draws its essence from contract

Missouri Act: Chapter 435 Adopted in 1980: presumption of arbitrability Any controversy except contract of insurance or “adhesion contract” Ct will look to other UAA cases Notice Requirement: Bold face type Exclusion of governmental subdivisions applies to disputes between them.

Variations High/ Low: Parties agree in advance on limits of loss/ recovery Final offer: Major league Baseball Incentive: Not binding but penalty for rejection

Concerns about Arbitration Adhesion: credit cards, banks, medical malpractice Bias of arbitrators towards repeat players. Waiver of court review of civil rights claims. Role of Arbitrator: Judicial v. Mediative

Amanda & the Hospital How would you advise her?

Other perspectives What suggestions are offered by Hayford & Peeples to improve commercial arbitration? What conclusions does Maltby reach about the efficacy of arbitrating employment cases?

Med-Arb What are the advantages of this process over simply mediation or arbitration? What are the limitations?

Private Judging Statutory authority Private process Judge must follow substantive and evidentiary rules Judgment is binding, but subject to regular appeal process Judge Judy is example

Advantages Criticisms Selection of judge Speed private “Rich man’s” justice Closed to public “Brain drain”