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Choosing the Right ADR Method

  1. When Do You Select the "Hammer"?

    1. When you Write the Contract (packing the tool box)

    2. When a Dispute Starts (grabbing the right tool)

    3. Private v. Court-Ordered

    4. Strategic Considerations: Who, What, When, How & Where

  2. Important Sources of Law:

    1. California Arbitration Act: Civil Procedure 1280, et esq.

    2. Federal Arbitration Act: 9 USC 1 (Also see Federal Alternative Dispute Resolution Act of 1998 (28 USC 651 (b))

    3. State Contract Act: Pub Contract Code 10240 (Arbitration) & California Code of Regulations 1300, et seq.

    4. Local Agency Claims: Pub Contract Code 20104.4 ($375,000)

    5. HOA Claims Against Builders: Civil Code: 1375-1375.1 - " dispute resolution facilitator."

    6. Reorganized California Rules of Court: The California Rules of Court were reorganized and renumbered to improve their format and usability, effective January 1, 2007.

    7. California Evidence Code: Sections 1115, et seq. (mediation privileges), Section 1152 (settlement discussions)

    8. California Code of Civil Procedure: CCP 664.6 (Settlement Enforcement)

    9. Other California Codes: Arbitration: A total of 328 code section group(s), Mediation - A total of 175 code section group(s), (e.g. CSLB Arbitration (B & P 7085). These do not include ordinances or rules of the California County, City or local agencies.)

    10. Other US Codes: Arbitration: 318 Statutes, Mediation: 216 Statutes, Ombudsman: 120 Code of Federal Regulations.

    11. Recent California Court Cases: John D. Shepard v. Edward Mackay Enterprises, Inc., et al, C052564, March 22, 2007 (Federal Arbitration Act Preemption of CCP 1298.7 overturning homeowner's right of litigation) and Jeld-Wen, Inc. v. Superior Court, No. D048782, 2007 WL 16068 (Cal. Ct. App. Jan. 4, 2007), holding a California trial court does not have authority to order mediation over a party's objection where the amount in controversy exceeds $50,000.

    12. Pending California Legislation: Legislative Bills introduced so far in the 2007-2008 Session: Mediation - 23 and Arbitration - 22 Bills

    13. Indian Tribes: Arbitration Agreement as waiver of Sovereign Immunity

    14. International Arbitration: 9 USC 201 (Treaty on Enforceability of Foreign Awards), California CCP 1297.11 (International Arbitrations in California), Carriage of Goods at Sea, International Chamber of Commerce, etc.

  3. Proposed Uniform Laws - Arbitration & Mediation

    The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 116th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

    UNIFORM ARBITRATION ACT (2000): This act revises the Uniform Arbitration Act of 1956, adopted in 49 jurisdictions. The primary purpose of the act is to advance arbitration as a desirable alternative to litigation. A revision is necessary at this time in light of the ever-increasing use of arbitration and the developments of the law in this area.


    ENDORSED BY: American Arbitration Association, National Academy of Arbitrators, National Arbitration Forum


    STATE ADOPTIONS: Alaska, Colorado, Hawaii, Nevada. New Jersey, New Mexico North Carolina, North Dakota, Oklahoma, Oregon, Utah & Washington


    UNIFORM MEDIATION ACT (2001)(2003): Provides rules on the issues of confidentiality and privileges in mediation. The Act establishes an evidentiary privilege for mediators and participants in mediation that applies in later legal proceedings. It also provides a confidentiality obligation for mediators. The Act was amended in 2003 to add a section on International Conciliation.


    STATE ADOPTIONS: District of Columbia, Illinois, Iowa, Nebraska, New Jersey, Ohio, Utah, Vermont and Washington


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  4. Issues in Selecting the Right ADR "Hammer":

    1. Size of the Dispute

    2. Complexity of the Issues

    3. Need for Discovery

    4. Cost of Resolving the Dispute

    5. Financially Crushing the Opponent

    6. Speed of Resolution

    7. Industry Knowledge of Qualified Neutrals

    8. Method of Selecting the Neutrals

    9. Who Pays for the Neutrals

    10. Value of Privacy

    11. "Fact" Case v. "Legal" Case

    12. Exchange of Documents

    13. Involvement of Experts

    14. Venue of the Action

    15. Location of the Hearings

    16. The Need to Bring in Third Parties

    17. Interest of Major Parties in Settling

    18. Insured Losses and Bonding

    19. The Runaway Jury

    20. Bankruptcy of a Party

    21. Political Considerations (Public Boards)

    22. Judicial Review

  5. ADR for Construction Contracts

    1. Meet and Confer

    2. Partnering

    3. Mediation

    4. Standing Neutral

    5. Ombudsman

    6. Dispute Review Boards

    7. Fact Finder

    8. Hearing Officer

    9. Project Neutral®

    10. Contractual Arbitration

    11. Standby Arbitration Panel

    12. Private Judging

    13. Stipulated Reference (CCP 638)

    14. Judicially Appointed Reference (CCP 639)

    15. Special Master


  6. When Litigation Starts - CMS Form - 2007

    1. Mediation (CMS Section 10. d) (1))

    2. Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to close 15 days before arbitration under Cal. Rules of Court, Rule 3.822) (CMS Section 10. d) (2))

    3. Nonbinding judicial arbitration under Code of Civil Procedure section 1141.12 (discovery to remain open until 30 days before trial; order required under Cal. Rules of Court, Rule 3.822) (CMS Section 10. d) (3))

    4. Binding judicial arbitration (CMS Section 10. d) (4))

    5. Binding private arbitration (CMS Section 10. d) (5))

    6. Neutral case evaluation (CMS Section 10. d) (6))
      Variation - Bench-Bar Panel

    7. Other:***________ (CMS Section 10. d) (7))
      *** Private Mediation, AAA Arbitration, JAMS Arbitration, etc.

      + Settlement Conference       (CMS Section 11)

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California Judicial Council Forms (2007)


Alternative Dispute Resolution (ADR)

ADR-100*ADR-100*
Statement of Agreement or Non-agreement (1/1/2003)


ADR-101*ADR-101*
ADR Information Form (1994)


ADR-102ADR-102
Request for Trial De Novo After Judicial Arbitration (1/1/2007)


ADR-103ADR-103
Petition After Attorney-Client Fee Dispute Arbitration Award (1/1/2004)


ADR-104ADR-104
Rejection of Award and Request for Trial After Attorney-Client Fee Arbitration (1/1/2004)


ADR-105
Information Regarding Rights After Attorney-Client Fee Arbitration (1/1/2004)


ADR-106ADR-106
Petition to Confirm, Correct or Vacate Contractual Arbitration Award

(Alternative Dispute Resolution) (1/1/2004)


ADR-107ADR-107
Attendance Sheet for Court-Program Mediation of Civil Case (1/1/2007)


ADR-109ADR-109
Stipulation or Motion for Order Appointing Referee (1/1/2007)


ADR-110ADR-110
Order Appointing Referee (1/1/2007)


ADR-111ADR-111
Report of Referee (Alternative Dispute Resolution) (1/1/2006)


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Tim: Alright, guys. I'm sure there's something we all learned from this.
Brad: Yeah, the nose can be broken more than once in a day.

Home Improvement, 2001 Season