A is for ARBITRATION (Continued from page 14)
of not more than ten pages can be very helpful to the arbitrator. Such a submis- sion should not, however, be made unless it is provided for in the agreement or has the prior approval of opposing counsel.
Appellate review
One of the most attractive features to arbitration is its formality. This is also to some its shortcoming. It is practically impossible to get a bad arbitration award vacated. It is interesting to note that Titles 7 and 8 of the Maryland Rules deal with appeals from the District Court, Judicial Review of Administrative Agency Deci- sions, and appeals to the Court of Special Appeals and he Court of Appeals. Where are the rules for appeals from arbitration findings and awards? Does that tell you anything? MUAA Section 3-222 does provide that a party may apply to the ar- bitrator to modify or correct an award with 20 days after the delivery of the award. The Court may only correct or modify an award (1) if there was a mis- calculation of the figures or an evident mistake in the description of the person, thing or property referred to in an award; (2) the arbitrator made an award on a
matter not submitted to him or her; (3) the award is imperfect in form affecting the merits of the controversy. MUAA Section 3-224 provides that an award may be vacated: (I) if procured by fraud or undue influence; (2) if it is evident that the arbitrator was not impartial; (3) the arbitrator exceeded his or her power; (4) the refusal to postpone a hearing, refusal to hear evidence or conducting the hear- ing contrary to the agreement; and (5) there was no arbitration agreement. The courts have added another: “if the arbi- trator has made a completely irrational interpretation of the contract”.
An arbitration checklist
Before committing your client to bind- ing arbitration, you may wish to go over a checklist with him or her. In doing so, you should consider the following: 1. The arbitrator or arbitrators. Who is to hear the case? How much will he or she charge? Who is to pay the arbitra- tor? Should the arbitrator be paid in advance or should you escrow money from your client to pay him or her? Bear in mind a client is not eager to pay the arbitrator that decides the case against him or her.
2. A timetable. When will the arbitration hearing be held? In the meantime,
what cut-off should there be with re- spect to the designation of experts and discovery? Should the parties agree to a scheduling order?
3. The forum. Where shall the hearing take place? Since the plaintiff ordinarily has the most live witnesses, his or her counsel’s office is often the most con- venient location. If the parties desire a neutral playing field, the arbitrator or arbitration association may be able to find an appropriate facility. Many county courthouses have conference rooms available. Several summers ago, I was involved in an eight day arbitra- tion trial in which we rented a courtroom classroom in one of the lo- cal law schools.
4. Confidentiality. Do the parties agree not to disclose what takes place at the hear- ing and not to disclose the amount of any award? Are there parts of the arbi- tration agreement, such as a high/low or insurance coverage to which the ar- bitrator should not be privy?
5. The evidence. What live witnesses will each side present? Should they be sworn? Is cross-examination to be lim- ited in any way? How long will the hearing take? What documents, re- ports, photographs and physical evidence are to be submitted? Is there to be any extension of time after the hearing when such evidence may be submitted to the arbitrator?
6. The award. Is the award to be binding? What if any post-hearing rights should the parties have for a re-consideration of the award?
Conclusion: Bill Miller’s ten best reasons to arbitrate (with apologies to David Letterman)
10. Allow trial lawyers to play judge. 9. Provide travel money for retired judges.
8. Easier to get a continuance from an arbitrator than an administrative judge.
7. Better flexibility in scheduling. 6. More relaxed forum; flexibility with rules and evidence.
5. Save expert witness fees. 4. Preserve confidentiality of your client’s case.
3. A void costly appeals. 2. Ability to select the decision maker. 1. Get a quick resolution of the case.
Please bear in mind there may be some equally good reasons not to arbitrate, so let’s not dismantle the court system just yet.
18 Trial Reporter Summer 2003
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