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For conversations sake... JAMS scenario


DonqIII
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For the sake of conversation only I would like some feedback.

Scenario:

Assume one was sued, they motioned the court for private arbitration and it was granted.

Assume that it is an OC and not a JDB.

Assume that there were no seemingly viable claims against the OC.

Assume that defendant initiated against OC and C/A in JAMS. But the only claims were against the C/A

Assume that the first and second fees were paid by the OC. for the first and second hearings.

Assume that the C/A atty filed MTD themselves from arb.

Assume that when the C/As attorney MTDed themselves from the arbitration they stated Claimant had another avenue for any claims claimed against them.

Assume that the arbitrator dismissed the C/A "WITH" prejudice.

Assume that the dismissal was not in the form of an award

signed by the arbitrator but was an Order by the arbitrator

Assume that there was a strong objection to the "WITH" prejudice and the arbitrator said they would consider this and advise at the next hearing.

Assume that at the next hearing (phone) the arbitrator upheld the "WITH" prejudice decision, none the less.

Assume that the case has not gone to an in person hearing or award yet.

Assume that the arbitrator permitted the C/A atty. to MJS for an upcoming hearing.

Would the following be even possible?

Would it be possible to motion the arbitrator at this point to add claims against the OC when none were initiated to begin with against them?

If not...

Could a second arbitration be started against the OC , by them selves, with actual claims that may have surfaced after the first is underway?

Finally, based on the above assumptions...

Is there anything that would apply to an appeal?

Would an arbitrators specific Order of DWP bar this from filing an FDCPA suit against the C/A atty. or not, if there is no written award, yet?

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http://www.pennlawyer.com/wolpoff.pdf

http://www.paed.uscourts.gov/documents/opinions/04D0549P.pdf

http://apps.americanbar.org/buslaw/newsletter/0008/adr/adr101.pdf

http://www.law.gonzaga.edu/Academic-Program/Files/cle/Folder/Bailey_Fighting_Abusive_Mandatory_Arbitration_Clauses.pdf

http://www.owenfazio.com/publications/Arbitration_Update.pdf

There are basically four grounds on which a court may vacate, or overturn, an award from an arbitration and they are:

(1) where the award is the result of corruption, fraud, or undue means.

(2) where the arbitrators were evidently partial or corrupt

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing or hear pertinent evidence, or where their misbehavior prejudiced the rights of any party

(4) where the arbitrators exceeded their powers or imperfectly executed them so that a mutual, final, and definite award was not made.

In the 1953 case Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168, the United States Supreme Court suggested, in passing, that an award may be set aside if it is in "manifest disregard of the law,".Courts on the federal and state levels have sometimes followed this principle when considering a party’s motion to seek relief from an arbitration award.

Public policy can also be grounds for vacating, but this recourse is severely limited to well-defined policy based on legal precedent, a rule emphasized by the United States Supreme Court in the 1987 case United Paperworkers International Union v. Misco, 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286.

The growth of arbitration is taken as a healthy sign by many legal commentators who find that arbitration eases the load on a constantly overworked judicial system while providing parties with a relatively informal, inexpensive means to resolve their problems. The greatest recent boost to arbitration came from the United States Supreme Court, which held in 1991 that age discrimination claims in employment are arbitrable (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26). Writing for the majority, Justice Byron R. White concluded that arbitration is as effective as a trial for resolving employment disputes. Gilmer has led several major employers to treat all employment claims through binding arbitration, sometimes as a condition of employment.

In California, many courts apply the preceding doctrines and case law when considering an appeal or trial de novo of an arbitration award. In the Federal Ninth Circuit case of “LaPine Technology Corp. v. Kyocera Corp., 909 F. Supp. 697, 705 (N.D. Cal. 1995), rev'd, 130 F.3d 884 (9th Cir. 1997), the arbitration agreement avoided the problem of limited judicial review by requiring the arbitrators to make detailed findings of fact and conclusions of law, and provided that a district court could "vacate, modify or correct any award based upon any of the grounds referred to in the Federal Arbitration Act, where the arbitrators' findings of fact are not supported by substantial evidence, or where the arbitrators' conclusions of law are erroneous. This gave the court absolute authority for purposes of review to determine if the award was a matter of law and if the law was applied erroneously.

Edited by racecar
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