Arbitration Presentation Excerpts & Downloads

 

Conflict Resolution: What Solo Litigators Need to Know About Arbitration

Texas Bar Journal (December 2013)

It is a solo’s nightmare. It is Friday afternoon, and you are getting ready to go to the coast. Your client walks in, slaps a thick contract down on your desk, and says he has been sued. If all else fails, read the agreement. Buried toward the end, in paragraph 24(q), is a heading titled “Arbitration” followed by a boilerplate. Do you pass it off to an associate down the hall and say, “Figure it out?” Nope, you don’t have an associate. Do you panic? After all, you’ve never handled one. No, because arbitration could be the best thing that has happened to your client.

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Has Positive Software Been Positive for Disclosure?

Dispute Resolution Journal (2013)

Good news for Fifth Circuit arbitrators: the Court has found few undiscolosed “compromising connections” significant enough to vacate arbitrators’ awards under the Federal Arbitration Act. In fact, since the Court of Appeals’ 2008 en banc decision in Positive Software Solutions v. New Century Mortgage Corp., 76 F.3d 278 (5th Cir. 2007 (en banc)(“Positive Software II”) set the standard, only a few Fifth Circuit decisions have hinted at the kinds of connections that would be serious for vacatur, while the vast majority have let awards stand.

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Arbitration in Employment Disputes

State Bar of Texas, “Essentials of Business Law” Conference (2013)

Arbitration is here to stay. Driven by what parties perceive as deficiencies of the formal judicial system, including expense, protracted length, gamesmanship, belligerency and wastefulness, arbitration has grown exponentially in the last ten years. Because of its confidentiality, empirical statistics are difficult to come by. Nonetheless, the American Arbitration Association, probably the largest administrator in the world…

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Trends in Arbitration Law

State Bar of Texas, Annual Meeting (June 2009)

One theme running through this year’s cases is the increasing “transactionalization” of arbitration provisions. By this I mean an arbitration clause that once simply said “Disputes will be arbitrated through the AAA” now runs for an entire paragraph, containing fee schedules, limitations on available remedies and the like. Because arbitration provisions are regularly enforced…

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The Ties that Keep on Binding: Case Law Update

Alternative Dispute Resolution Conference, State Bar of Texas (October 2007)

As always, a fertile area for litigation are cases raising questions of disclosure: what to disclose, to whom, when, and what are the consequences of failing to disclose. Fortunately, the cases decided in the past year have returned some stability to the law governing disclosure, if not predictability. The most significant case addressing disclosure in 2006 was the Fifth Circuit’s decision in Positive Software Solutions, Inc. v. New Century Mtg. Corp.,…

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Awards and Appeals: So You Thought You Were Done

Arbitration Institute, Texas Institute of Continuing Legal Education (December 2006)

At long last, the process is done. The discovery (and the attendant discovery disputes) were finished, the arbitration set, witnesses were flown in from around the country and the world, the evidence was heard and the arbitrator or panel of arbitrators issued their award. Perhaps you are satisfied with the award, and wish merely to have it confirmed so you may collect it (or at least try to collect it). Maybe the award is the greatest injustice…

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ADR Case Law Update and Ethics

Alternative Dispute Resolution Section, State Bar of Texas (October 2006)

Not surprisingly, with the tectonic shift of disputes out of the courthouse into arbitration, the law of alternative dispute resolution has not stood still over the past year, with a number of significant changes and clarifications of which the practitioner…

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Arbitrator Disclosure: Standards & Growing Challenges

ALTERNATIVE RESOLUTIONS, Vol.15, No. 1 (February 2006)

There is no question that arbitration is here to stay, with major arbitration providers reporting double-digit increases in the number of matters arbitrated year after year. However, with the increase in matters being arbitrated there has also been an increase in the number of disputes arising out of the conduct of the arbitration, especially disputes regarding whether the arbitrator improperly failed…

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Arbitration in Banking and Financial Transactions

SAN ANTONIO BUSINESS JOURNAL (July 2005)

Like many businesses every day, you or your company may have recently filled out an application to open a simple checking or brokerage account or to obtain a credit card from a bank. Perhaps you obtained an interim construction loan, an operating line of credit, or letter of credit by signing a lengthy lending, security, or other type of agreement with a financial institution. On a more sophisticated level, you may have entered into an…

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An Arbitration Primer

SAN ANTONIO LAWYER (October 2004)

What is arbitration? In a nutshell, it is the process whereby a dispute is submitted to one umpire or a panel of three umpires—the arbitrators—for a final and binding determination, known as the award. The panel conducts itself similarly to a judge. That is, it conducts an evidentiary hearing, hears opening and closing arguments, rules on evidence, reviews the testimony and evidence presented by the parties, and renders an award enforceable…

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Arbitration in Estates and Trusts

14 ALTERNATIVE RESOLUTIONS Vol. 14, No. 4 (September 2004)

Arbitration has been used extensively throughout America’s history to resolve issues such as the ownership of colonies, the ownership of particular pieces of territory, the recovery of money owed by one state to another, and all sorts of religious matters. In the specific context of wills, no less a personage than the father of our country, George Washington, included an arbitration clause in his will…

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Arbitration Primer: An Alternative Dispute Resolution Tool for Your Professional Responsibility Repertoire

State Bar of Texas, Advanced Estate Planning and Probate Course (June 2004)

The beauty of arbitration is derived in its flexibility to customize each individual arbitration to the needs of the parties. It is designed to be user friendly. While the parties’ knowledge of the minimal rules is indispensable, arbitration is not designed to be a trap for the unwary. For example, there are no default procedures in arbitration for parties…

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