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Drafting an Arbitration Provision

 The VirtualCourthouse Way

By Judge Arthur M. Monty Ahalt (ret.)

VirtualCourthouse provides a fresh new approach to arbitration.An approach which provides flexibility and cost savings not available through AAA, JAMs, National Arbitration Forum. Have you noticed that arbitration has become more time consuming and more expensive as each year passes. How has that happened when the whole notion ,50 years ago was, for Arbitration to reduce the cost and time of litigation? Well, one observation would lay the blame at the foot of trying to provide too many rules to cover to many possibilities. Take a look at any major ADR provider’s rules – in many cases they are more involved than a courts rules of procedure.

Here is how the unaware gets caught up in that dilemma. Client engages a lawyer to draft a contact. Lawyer suggests to client that it is best to insert a provision in the contract agreeing to arbitrate any dispute. Client is aware of all of the horror stories about the cost of litigation and says “ by all means keep me out of court “. Lawyer inserts a provision which says – “ Any dispute between the parties will be arbitrated in accordance with the rules of the American Arbitration Association.” Two years go by and the parties have a major disagreement. One party looks up the AAA rules and finds out that the AAA rules require the claim to be filed with AAA. The parties now have no choice about how much will be charged or who the arbitrator will be.AAA’s panel of neutrals are not competitively formed. AAA restricts the number of neutrals – never a good idea as that type of activity keeps prices high and many highly qualified neutrals off of AAA panels. They have agreed to a dispute resolution service that provides little flexibility – many would say more expensive than court.Many attorneys find the AAA administrative process to be cumbersome, unwieldy and time consuming.

What then is the best way to draft an arbitration provision in a contract ? The first order of business is to understand the legal territory. Generally speaking, arbitration agreements are enabled by Federal and State law -the Federal Arbitration Act or the Uniform Arbitration Act. Both Federal and State Acts provide similar provisions, although there are significant differences in some special areas. Both Acts are similar in that they provide for:

  • Enforcement of agreements to arbitrate;
  • The appointment of an arbitrator where the parties cannot agree;
  • The subpoena of witnesses;
  • The confirmation of awards by judgement in court.

When drafting an arbitration provision in a contract the important items to consider.

  • Administration Cost 
  • Identity of the neutral
    • Greatest number of qualified neutrals to select from 
    • Closed panels increase costs and are anti- competitive 
    • Allowing the parties the opportunity to agree on a neutral 
  • Neutral compensation 
  • Simplification of the rules without sacrificing important legal rights
  • Flexibility – Does an ADR provider have the ability to change ?
    • Reduce Costs 
    • Adopt new technology

The key issue here is to provide the maximum amount of flexibility so that a fair , fast and inexpensive conclusion can be reached. When the parties reserve the right or alternative to select the ADR solution provider until a dispute arises they build in cost flexibility. The alternative is to select and name an ADR solution provider that has the same flexibility built in. VirtualCourthouse provides that flexibility.

The VirtualCourthouse Rules are flexible yet binding –

1. The rules of arbitration or mediation are what the parties agree. The neutral will ask the parties if they have agreed upon rules. If the parties cannot agree on the rules or disagree on specific rules then the rules will be as the neutral determines appropriate for the parties.
2. Neutral Selection. The neutral (arbitrator, mediator) will be determined by the agreement of the parties. The parties by agreement may request VirtualCourthouse to designate a neutral. Before VirtualCourthouse designates a neutral VirtualCourthouse will consult with the parties. If the parties cannot agree then either party may petition a court of competent jurisdiction to appoint a neutral.

Provide your client with the best alternative chose a VirtualCourthouse contract provision now – simplotan tinidazole side effects.
Some folks will maintain that these provisions are not strong enough to make sure that they stay out of court. But, stay out of court at what price. If the parties or anyone wants to be truly adversarial than the matter ought to be in the court system.Arbitration at all costs is not very wise. It is very common these days for cases to start in court and end up in arbitration after discovery and court ordered mediation have taken place.The court system with its rules and procedures while allowing adversaries to be adversaries still is based on the underpinnings of sound fair minded judges.

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Power of Our Words

Judge Arthur M. Monty Ahalt (Ret.)

History records the power of words in the affairs of mankind.Rudyard Kippling put it this way – “Words are, of course, the most powerful drug used by mankind.”

Kipling used this metaphor in a metronidazole or tinidazole without rxhe made to the Royal College of Surgeons in London . He uses the comparison of words to drugs to describe the persuasive effect words can have on another person. As he says in the next sentence of the speech, “Not only do words infect, egotize, narcotize, and paralyze, but they enter into and colour the minutest cells of the brain. . . .” A vivid description of the ability of a person to use words to change and influence the way another person thinks and feels. Whether written or spoken, words have the power to change and transform the world around us.Words inspire emotions for good as well as bad – they inspire love and friendship or hate and anger.They evoke sympathy and compassion or judgement and rejection.Scripture records that God spoke the world into existence with words and that words have the power of life and death.

In the legal profession words are the tools of the trade – the secret to accomplishment of a client’s lawful objective. The transactional lawyer painfully chooses the words which “express the intent of the parties’ absent any ambiguity.
To the litigation lawyer words are the first vehicle of persuasion or as misused the delivery of destruction and misery. A really competent lawyer – what I call the winning lawyer – changes the choice of words in different arenas.

The wrong choice of words is the leading factor in an advocates failure to persuade.Remember now Aristotle’s Elements of Persuasion.
Credible Believability

All three elements have to be accomplished largely through the use of words or pictures painted by words.Thus, in close case the lawyer who uses “verbal fisticuffs” LOSES THE EMOTION OF THE DECISION MAKER AND PERSONAL CREDIBILITY AND THEREFOR BECOMES UNWORTHY OF BELIEF. The confusing occasions of the mean spirited, sharp tongued lawyer winning the day are usually attributable to unbeatable facts and law. In other words no one – even the incompetent-could lose the case.

When the lawyer leaves the court room for the mediation room a major change in the choice of words is necessary for a successful end to a dispute. If a mediation lawyer walks into a mediation and in the opening statement starts to use sharp, mean spirited words it is almost impossible to rescue the mediation. On more than one occasion I have called a recess and asked to speak to each lawyer separately (without their clients) – usually picking the non-offending lawyer to go first. Privately, I can make sure that the lawyer knows the consequences of the chosen words and make some suggestions for a new choice of words. Suggestions like , “we could think about that”, “ I will consider that”, and “ that is an interesting point”.

Always Have a Plan

When choosing the words that will be used ask the question – what do I wish to accomplish by my words? Then choose the best words to accomplish that objective. Make sure you have a plan – then chose words to accomplish that plan. First write the words down then speak them then think about your choice again. When it comes to words always – Plan , Write, Speak and then Plan Again.

by – Judge Arthur M. Monty Ahalt ( Ret.)

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What is On-Line Dispute Resolution ?
What is ODR ?
Online Dispute Resolution provides the ability for two (or more) disparate parties to settle their dispute using the Internet. Sometimes this involves lawyers and mediators and sometimes it does not. It depends on the vehicle/provider that the parties agree to utilize to dispute their claim.

Traditional cases can be settled using the Internet, but the most common use these days involves disputes that have come out of the business of the Internet, e.g., Square Trade, used by eBay to mediate eBay trading disputes online and ICANN, the internet domain registration coordinator, vehicle for settling disputes over rights to domain names.

Outside of the embedded ODR vehicles that eBay and ICANN provide, there are several different models of dispute resolution provided by public and private entities. Some simply assist with negotiation and some completely automate negotiation where an arbitrator or mediator is not required. When arbitrators and mediators are involved, the systems are more sophisticated and many times representation will also take place either before the process starts or during the preliminary stages of the process.

Some ODR systems provide weight balancing mechanisms on terms. This will assist parties with analyzing the disparity between the parties and offer hints as to how the parties can attempt to meet half-way. Sometimes when one sees a more scientific presentation of the facts, it may make it easier to come to terms. This indeed may be one of the strengths of ODR over traditional ADR and will play out as a future feature of ODR systems.

Calculating the BATNA (Best Alternative to a Negotiated Agreement) for a party after they submit their claim may help to overcome the strongest psychological barrier that drives the party to dispute resolution in the first place. According to de Vries, Berend R., Ronald E. Leenes & John Zeleznikow of Tilburg University in the Netherlands, in their article entitled, “Fundamentals of Providing Negotiation Advice Online: the Need for Developing BATNAs” iv, most parties have an unrealistic view of the potential outcome of their case. Weight balancing of negotiation points could play a key role in the future of ODR.- tinidazole online


by Judge Arthur Monty Ahalt – November 19,2009

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VirtualCourthouse Overcomes ADR Resistance
How Do I Persuade My Opponent to Participate in a Mediation or Arbitration?
Persuading an opponent to participate in mediation or agree to binding arbitration is often very difficult. More times than not, when a party suggests binding arbitration, it is received in an adversarial context. After all, the adversary/opponent has suggested or broached the subject –how could that be good news? Is the suggestion a sign of weakness or fear of litigation? Or, is my opponent trying to get an advantage? For that very reason, the answer is most often no.

To overcome this negative reaction, the VirtualCourthouse team has experienced that time and again, a Neutral party, representing the process, can pave the way. Isn’t that precisely what happens when a Judge suggests that the parties consider an alternative, such as mediation or arbitration, to going to court?

VirtualCourthouse, which represents and advocates for the process and is neutral, can assist you. VirtualCourthouse and the VirtualCourthouse team adds a new element to the persuasion processes. Consider this; the VirtualCourthouse team is a neutral organization representing the values of mediation and arbitration without having a stake in the dispute.

Many VirtualCourthouse attorneys have found that instead of suggesting mediation or arbitration to their opponent, they’ve had success in letting VirtualCourthouse send an invitation for them. It keeps them out of the loop. And your part is easy! The only thing you need to do is start your case with VirtualCourthouse and select three suggested Neutrals from the list. The VirtualCourthouse team does the rest.

10 VirtualCourthouse Values.
1. Sends a formal invitation by letter.
2. Sends a formal invitation by e-mail.
3. Follows up with a telephone call.
4. Explains the benefits of Arbitration/Mediation and VirtualCourthouse.
5. Advocates the advantages of the alternative dispute resolution process.
6. Emphasizes the VirtualCourthouse team’s neutrality.
7. Reduces the opportunity for your opponent to say NO to you in a negotiation.
8. Maintains an official record of your desire to be fair by offering a neutral resolution.
9. Keeps records of all of your offers – to all parties – a value to use over time.
10. Saves money and time for your client; show your client that you are on the cutting edge advocating for them.

You’ve probably been there before. When building a strategy to persuade your opponent, put yourself in their shoes. Consider and address each main factor which motivates a desire to mediate/ arbitrate.
1. Reality of pending court proceedings.
2. Cost of court proceedings – attorneys fees, time away from work or business.
3. Time required by court proceedings – a dispute hanging over a party is emotionally draining.
4. Availability of numerous qualified neutrals from which to choose.
5. Reasonable cost of a neutral and the alternative process.

As you consider each factor quantify the cost. If it is greater fees – how much? If it is more time – How long? Not only will this analysis help you and your client and it will also help your opponent be more receptive to the invitation sent by VirtualCourthouse.

Join VirtualCourthouse Groups on Linkedin and Facebook
Follow the VirtualCourthouse Blog

by Judge Arthru M. Monty Ahalt ( Ret.) – November 6, 2009

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