differences between arbitration and litigation
- Results in an award that is final and not subject to further challenge (w/ limited exceptions: i.e. corrupt arbitrator)—no appeal
- Parties can choose the Arbitrator
- Permits parties to design their own procedures
- Can be less expensive than Litigation
I.e. can testify by affidavit rather than in person;
o But Arb’rs are more expensive bc they charge the parties by hours, not salaries (judges are paid by salary via taxpayers)
- More private than ordinary adjudication
o I.e. not open to the public; can request that the result is kept private
- May avoid the vagaries in outcome that a jury may introduce
o A jury acts in a lawless way, tis verdict is subject to reversal…Arb’r “awards” are not subject to judicial review except for the most extreme reasons
- May decide the dispute more “softly” than a ct
o I.e. an expert or someone w/ a lot of experience on the subject
- Choose/limit procedure and formality
- Avoid class action
Can the parties agree to allow an appeal to arbitration?
NO
How to challenge an arbitration clause?
- MUST CHALLENGE ARBITRATION CLAUSE AS UNCONIONCONABLE FOR COURT TO HEAR
- If challenging entire K as unconsionable arbitration will decide
What do you need to be unconscionable?
1) PROCEDURAL: how K was made
(NEVER ENOUGH)
2) Substantive: focuses on terms of agreement, whether terms are 1 sided or not to shock the conscience
- focuses more on money than anything
-Need both
Are limitations are discovery enough for unconscionability to apply?
NO, almost never enough because lawyer will not fully limit discovery
if P has to pay any costs of arbitration is that enough for unconscionable?
Usually enough to make unconscionable
2 products coming from settlement discussion
1) Release: Private Contract side of settlements defining exactly what the terms are; No bringing other claims after this point regarding this issue (for privacy)
2) Consent DecreeAgreed judgment that the Ct enters regarding a settlement (for power)
- Difference?
o Release if breached— have to bring a breach of contract (whole new lawsuit)
o Consent decree if breached—get a Ct order (much more powerful); Go back to same judge who issued decree and have him enforce it
Contracting for Confidentiality
Confidenitality agreements do not buy silence, cannot keep witness from testifying about past events relevant to another suit.
- in an ordinary case, judge does not need to examine or approve settlement but must grant P’s request to dismiss if that is part of the deal.
Exceptions to the Freedom to Settle General Rule
- Class actions require judicial approval of settlements
- cases involving minors where court required to approve
- some multi-defendant cases
- sometimes state or federal regulation regulations settlements of certain claims
(ex. ADEA claims)
Settlements are Ks and can be attacked on any of the grounds on which on can attack any K
What happens if D is served and does nothing?
- D is held in default
How to ask a clerk to enter default
under FRCP 55
What is involunatary dismissal
When P initiate actions and then does nothing with them
When can P voluntary dismiss a case?
1) Anytime before D answers
2) P can dismiss anytime if all parties agree
Can parties K from keeping witness from testifying in later suits?
NO
-agreements do not buy silence, cannot keep witness from testifying about past events relevant to another suit
Does a judge need to examine or approve settlements?
- NO (unless class actions)
- Judge does not need to examine or approve settlement but must grant P’s request to dismiss if that is part of the deal
How to challenge arbitration?
- MUST challenge arbitration clause as unconscionable for court to hear.
- If challenge whole k as unconscionable will be subject to arbitration
How to keep arbitration and out of the courts?
Must file a petition for an order compelling arbitration
Can you arbitrate class actions?
NO
How does Kilborn feel about Arbitration?
It’s good b/c it is litigation “light.” You can choose the rules and the choice of law.
How does Kilborn feel about Mediation?
It fucking sucks. He says it’s a fantasy and hardly ever works.
