Positions vs.

Interests (MH 2):

- Position: “I don’t want a halfway house for the mentally disabled in my neighborhood.”
- Interest: “I don’t want a halfway house for the mentally disabled in my neighborhood because I am
concerned about increased crime and diminished property values.”

Coercion is typically not appropriate for Mediation, as it often leads to “decision regret”

With matters of principle or pubic issues, privatization may not bode well for ADR

Advantages of a Client-Centered Approach (65)

Identifying Content and Feelings (69)

Types of Bargaining Positions (93)

Approaches to Mediation (257)

Who should participate in the Mediation? (273)

What Procedural issues must be addressed? (274)

How is the stage set? (Location)? (275)

Understand which facts are important, what the conflict is about, and how to develop an information
base (278)
- Looping (278)

Interests & Needs (281)

Issues (282)

Proposals (282)

Feelings (283)

Principles, Values, & Rules (284)

BATNAs (285)

Effective Listening

Barriers to Negotiation (291, 204)

Caucusing (292)

Styles

One-Party Issues (MH 10)

Prioritizing Issues (MH 10)  2 approaches (MH 12)

Predicting the Issues (MH 13)

Packaging Issues (MH 20)

Storytelling (MH 22)

Evaluative Mediator | Facilitative Mediator | Transformative mediator (E&E 90)

Time/Value of Money: Parties tend to overlook the time value of money, forgetting that $100,000 received two
or three years from now, has a lesser value when translated into present day dollars. Finally, they may overlook
the fact that they should calculate the “expected value” of their “final outcomes” using the probability of those
results

Mediating Mass Torts Claims (561)

focused fact finding by deploying effective listening, note taking, and questioning skills;
formulate issues in non-judgmental terms; and develop a discussion strategy

MEDIATOR’S ROLE
The mediator’s role is to help the parties see their dispute objectively so they can make well-reasoned
decisions about how to resolve the dispute. Throughout mediation, the mediator should deploy effective
listening and questioning skills to ensure he/she completely understands the problem. Mediators aren’t required
to resolve the dispute and need not pressure parties into settling, particularly when other courses of action, like
litigation, outweigh a settlement’s benefits (making a decision tree can help determine each party’s best
options). Rather, mediators should make sure the parties understand how possible outcomes serve their interests
while recognizing that the ultimate decision is up to the parties. From the get-go, the meditator should be
attuned to what solutions the parties want and determine the parties’ BATNAs to get a sense of what solutions
might produce the best outcomes. Here, settlement is probably the parties’ best option [because…
“time/value of money”; save relationship] so by helping the parties objectively assess the conflict, they will
likely reach an amicable resolution. Consequently, the parties might benefit from a mediator who takes a
Tr/Ev/Fac approach and prompts them to X (discussed further in Style section below).

DEFINE THE PARTIES (273)

First, the mediator must define all the parties to the dispute, including ones that may be indirectly
involved and/or affected by the mediation’s outcome. The mediator should consider whether to take broad or
narrow views of the parties and should ensure that all parties that may be affected by the mediation’s outcome
will be represented throughout the process. Here, the primary parties are [X and Y], [but it’s also important
for the mediator to learn about A and B, who may be affected by the mediation’s outcome].

DEFINING THE PROBLEM & ISSUES

Next, the mediator must define the problem and determine whether to define it broadly or narrowly.
This can be done during or before (through a pre-mediation conference) the mediation occurs. Here, the parties
would benefit from a pre-mediation conference; holding separate meetings with the parties pre-mediation
would give the mediator more time to think about strategies for resolving the dispute, as opposed to
having to come up with and employ such strategies on the spot. If the problem is not defined early on, the
parties might waste time defining it during mediation, which will frustrate the process. The mediator must
clearly and objectively define the parameters of the conflict prior to delving into the issues, and, in doing so,
should pay close attention to the parties’ body language, tones, and statements to discover their true interests,
concerns, needs, values, beliefs, and desires/wishes. Asking open-ended questions [and looking at past
party relationships] may also provide the mediator with some insight as to how the problem should be defined.
Here, the problem should be defined [broadly because the issues extend beyond the legal dispute] /
[narrowly because the parties seek to resolve a technical problem]. Setting clear parameters for the parties will
help them feel more comfortable and confident that their concerns will be addressed during mediation while
also ensuring that the mediation’s scope is finite.
Next, the mediator must define the issues. To do this, the mediator must ascertain each parties’
interests and determine where they diverge and coincide, noting whether the diverging issues revolve around
concrete substantive/legal or psychological concerns. The mediator should recognize barriers to ascertaining
true interests, such as positional claims. To overcome such barriers, the mediator should tell the parties to focus
on what they want to accomplish through mediation and can help reframe positional claims. To get the parties
to understand what their interests are, I would help them distinguish their main interests [e.g. For A, name A’s
main interest and for B, name B’s main interest; e.g. getting value from his investment] from their positions
[e.g. For A, name A’s position and for B, name B’s position; e.g. wanting $60,000 for the cabin]. If a party
still appears to mask his/her true interests, the mediator should explain that making true interests clear helps
generate a result that satisfies those interests; this could be done by having a confidential separate meeting.
Here, the legal issues are: [list the issues]. Issues deriving from underlying concerns external to the legal
conflict also exist. For [party X] those are: [see red tab samp answ p. 1 of 17]. For [party Y] those are: [see
red tab samp answ. p. 1 of 17]. Once the issues are defined, I would advise presenting them visually to the
parties (e.g. by writing them on a whiteboard or paper), as it makes it more likely that all the issues will
be addressed and helps the parties share a common focus during the mediation. [I would also try to keep
out discussions about [e.g. Martin sleeping w gf; value issues]. If the issue kept arising, I might stall
negotiations to let the parties meet together without their attorneys (to demonstrate that this is not a legal
matter worth addressing here) to discuss it, but would stress that they’re wasting time and money on the
issue.]
Next, the mediator must determine how to prioritize the issues. He/she can choose to either: (1)-invite
the parties to jointly examine and prioritize the issues. [this works well with parties in a partnership] or (2)-
initiate prioritizing issues. Here, the mediator should initiate prioritizing issues, as his/her expertise will
likely lead to guiding the parties to resolve the “easier” issues first. This would help the parties develop
confidence early on in the negotiations as opposed to causing them to endure the frustration of a
“deadlock” early because they picked to discuss difficult issues first. [X is the easiest issue to address, so
I’d recommend approaching it first and then working our way up to more complicated issues like Y].
The mediator should also consider packaging issues (i.e. deciding which issues should be addressed
separately and which are best addressed together). Strategically packaging issues can optimize efficiency since
some issues are more closely related than others and a party might concede on one issue to ensure the
outcome on another. Here, I would address [name 2+ issues] jointly as it’s foreseeable that [Party X]
might be willing to give up [issue] if [he/she] could [get… e.g. “reach an acceptable visitation schedule of
children”].

PROCEDURE & STYLE

The mediator should explain the general mediation process, confidentiality rules, fee arrangements,
caucusing, and mediation styles to the parties to ensure they understand and consent to the basic nature of the
mediation process. The rules of mediation should be clearly established in the mediator’s opening statement.
He/she should set the negotiations at a neutral, non-adversarial location (so neither party feels disadvantaged)
with two available rooms (for caucusing purposes, discussed below). Here, negotiations should take place at
[name neutral location] because [reason for location choice; e.g. neither party would have a home-field
advantage]. Food should be provided to make the process feel more informal and make the parties comfortable;
this encourages cooperative bargaining. The time/length of negotiations should also be set because a benefit
of mediation, over litigation, is that mediation’s quicker. To ensure this benefit, I would set a deadline
[probably 3 days] and tell the parties that if no decision is reached by then, the mediation will end. Imposing
time pressure will help drive the parties towards reaching a resolution.
The style the mediator chooses to employ can also influence the mediation process. Here, the
[facilitative/evaluative/transformative] approach would be best because (look at E&E 90)
If the parties have bad relationships with each other  use transformative approach

If the parties need help communicating & not much direction  use facilitative approach

If the parties need a lot of direction  use evaluative approach (good for products-liability cases)

The mediator could also use a combination of approaches.

[Note: the style you choose could be in light of cultural differences]

Some research indicates that evaluative mediation is particularly helpful in cases where the present or future
relationship between the parties is not a factor. On the opposite end of the spectrum, transformative mediation
seems to provide remarkable results when the substance of the underlying transaction is not as important to
the parties as are interpersonal relationship and personal aspects of empowerment and recognition.
Facilitative mediation seems to hold an edge in those conflict situations where it is vital to reach agreement on
the substantive portion of the transaction but the relational elements have refashioned the very nature of the
conflict.

Because, objectively speaking, settling seems to be the parties’ best option, the mediator could use
“trashing” to tear apart the parties’ claims. I believe both [Party X] and [Party Y] would benefit from
understanding the weaknesses in their claims and what could happen if they went to trial. It might
expedite the process and help the parties move passed [relational/personal issues] if they knew the
consequences that not settling could yield.

The mediator must also determine how to approach caucusing. I would recommend caucusing
selectively because, unlike never caucusing, it allows for collaboration and, unlike mostly caucusing, it
doesn’t take power and control away from the parties by invoking the mediator as the “source of information”
who holds “the key to movement” (293). Because caucusing too frequently could cause distrust or illusions of
favoritism, I would only caucus if there’s a legitimate reason, such as [see list below for reasons & apply to
your facts].

Reasons to Caucus/”Call a Separate Meeting (also see orange HL in CB 292, MH 31)

- To provide relief from destructive emotions & high tension, allowing the relevant party to vent their
feelings
- To provide space and time for a weaker or disempowered party to recover
- To establish where there are any concerns that have not yet been raised but need to be addressed to resolve
the dispute
- To attempt to understand the motivations of the parties and their priorities
- Where the mediator believes that there is additional information that he or she will not obtain in a joint
session
- To deal with breaches of the mediation guidelines and threatened disruption of the process and to get the
parties recommitted to the process
- To attempt to break a deadlock by changing the dynamics of the negotiation process
- To give the mediator the chance to “realist check” that proposals being considered are doable and optimal

1. Caucus selectively
 Stulberg
(a) To obtain info and insights that a mediator does not believe he can acquire in joint
discussions.
(b) Four primary reasons:
i) Some people are willing to share info with a netural intervener as long as others do not
hear what they say.
 ii) Psychological need for safety zone
iii) Chip away at a party’s rigidity
iv) Mediators probes sharply for weaknesses of loopholes in a party’s position in order to
convert them into bases for developing settlement terms
v) It generates a sense of confidence and intimacy between the party and the mediator.

CREATING SOLUTIONS & RESOLVING THE DISPUTE

Once the mediator believes enough information has been presented to reach a resolution, he/she should
help the parties find creative solutions that satisfy their underlying needs. The mediator could employ a variety
of techniques to achieve this. For example, the parties could try the “atlas of approaches” technique (168) by
considering how professionals from diverse fields would view/resolve the problem (e.g. How would a
psychologist view this? A journalist? Etc.). Other techniques include engaging in wordplay and role-reversal.
These techniques would enhance the parties’ ability to see the conflict in new ways and better understand the
other party’s perspective, which can yield creative solutions that expand the “rewards pie” for both parties.
Here, there are many creative solutions to consider, including: [list in bullet points possible creative
solutions].
When mediation ends, regardless of its outcome, the mediator must ensure that the parties understand all
commitments made to one another and must “formulate a plan going forward” (293). If an agreement is
reached, the mediator must ensure that both parties have the same, clear understanding of what they agreed
upon. To do this, I would reduce the agreement to writing using the parties’ own words, plain English, and
precise language; this helps to prevent misunderstandings about what they agreed upon. I would also have both
parties initial each page of the agreement and formally sign the last page to indicate their approval of the terms
and help bring about closure. Finally, I’d try to end the mediation on a positive note by commending the parties’
efforts and “acknowledging any constructive movement” made (294).

CB 294

1. Coleman & Deutsch, some guidelines for developing a creative approach to conflict.
 Use time and space arrangements to create an oasis for creative problem solving
 Develop a serious but playful atmosphere
 Foster “optimal” tension between conflict and creativity
 Foster confidence to take the risk of being outlandish
 Have appropriately phased open (divergent) and closed (convergent) thinking.

Ad-Hoc vs. Structured (MH 1)

Pre-Mediation Conference (MH 2)

I would have a pre-mediation conference wherein I would meet separately with each party before the mediation
to define the issues. This would enable me to spend adequate time with the parties individually to learn about
the problem’s parameters in a relaxed environment. It also would give me more time to plan which strategies I
want to employ rather than requiring me to develop them on the spot.

Commercial mediation. For commercial firms, disputes are an expected occurrence in doing
business, and firms will have concerns for their reputations for fair dealing, whether or not the
particular disputing parties expect to have future transactions between them. Commercial firms
have the sophistication that results from being repeat players.81 Law and custom create
expectations regarding the range of acceptable outcomes for disputes. The parties will want a
commercially informed mediator who understands these things, and such mediators may or may
not be *136 lawyers. Negotiation must fit into the work lives of executives with demanding
responsibilities. As experienced players, parties may expect certain negotiation patterns, but
sophisticated parties will have a pragmatic mind set that may be open to mediators'
improvisations.82 Paternalistic attitudes in the mediator and the public will be minimal.
Accordingly, commercial mediation occurs in diverse forms.83

Where to Hold the Mediation

Sometimes you have a choice as to the location for the mediation. Neutral locations may be best. The mediator's office or a hotel are common venues. On the
other hand, conventional wisdom states that if you can hold the mediation on your home turf, there is some psychological advantage. (For example, you
already know where the kitchen and the restrooms are located.)
In the author's view, location is secondary. When experienced counsel are involved, being on the other party's home turf is immaterial. (As a matter of fact,
some lawyers like to be at the opponent's office to pick up “inside information,” get a sense of the operation, to eat free doughnuts and coffee, and pick up free
pens and legal pads.) Irrespective of location, the most important factor is to make sure that there are enough rooms for the parties.
Typically, each party needs a separate room. The ability to confer in private and in relative comfort is essential to success. Food is also a good inducement. In
a mediation that this author attended at a conference center in Atlanta, there was a never-ending buffet -- breakfast, mid-morning snacks, lunch, mid-afternoon
snacks and dinner. (For those of you who have been on cruises, the only meal missing was the “midnight buffet.”) No one was allowed to leave so the only
things to do were to mediate and eat. Although the participants all gained several pounds, the case settled and the availability of food played a positive role.
At least the hotel next door had a gym.

------------------------------------------------------------

Arbitration
Goals:
- Speedy, low-cost dispute resolution  should have an informal process and make decisions virtually
non-appealable (i.e. binding)
- Want decision maker with particular background or expertise  should write those requirements in
the arbitration agreement
- Private, non-published decision  should be included in the agreement
- Process that is open to the public and results in a reasoned written award  should be specified in
agreement
o AAA R-42(b): Under the AAA commercial rules, unless a request for a reasoned award is made
in writing by the parties prior to the appointment of the arbitrators, the arbitrators need not render
a reasoned award.

International Parties  international parties find arbitration desirable because it allows disputants to pick a
forum and decision makers who are likely more predisposed to be neutral than the home court of any disputant;
arbitral awards are also often more enforceable internationally than are court decisions

Binding Arbitration: offer the additional benefit of finality; a binding arbitral decision ends the immediate
controversy

Privately-Resolved Disputes  (+): enable the public to save money it otherwise would have expended on
courthouses and judges; (-): does not create public precedents that are important to support the development of
law and inculcation of societal values

Commercial Arbitration (387):

 - Finds arbitration attractive because it offers more expertise, speed, and privacy than courts do
- Typically commercial awards are neither reasoned nor published (i.e. no recitation of the facts and legal
reasoning underlying the dispute) & just state who won, who lost and how much money the respondent
owes to the claimant
o Arbitrators may choose to write more extensive decisions
- Commercial arbitration clauses are typically based on providers like AAA, JAMS, or NAF
- Folklore Arbitration (Note: this is different from what’s generally done today, which is “Contract
Arbitration”):
o I would let the parties select an arbitrator who understood industry norms and practices,
which is more beneficial than having a stranger unfamiliar with the matter or industry judge the
dispute. By allowing the parties to choose a knowledgeable & trusted arbitrator capable of
ruling on the equities of the factual context in an informal manner, they feel more satisfied that
the outcome will be fair.
o I would specify that the arbitration be private so as to avoid any negative publicity. In
furthering this goal, I would request that the arbitration be done informally, as written opinions
could generate publicity.
o Can still agree to prohibit discovery
o Can still set a quick hearing date
o Can still forbid arbitrator from holding a preliminary hearing or issuing a written decision
containing reasons

International Arbitration Contract Provisions (390):

- Designate that the dispute be heard in a neutral and mutually convenient location
- Can specify the qualifications and nationality of the arbitrator or panel of arbitrators
- Often the clause says that each party can select an arbitrator and then these two arbitrators must select a
third arbitrator who will chair the panel
- Specifying substantive and procedural law helps ensure that the parties have greater trust in the
process and will waste less time and money fighting over procedural issues.
- Some international arbitration is resolved using equitable principles (e.g. in justice and fair dealing).
- Note that cross-border arbitral decisions are more likely to be enforced than litigation decisions.
- Can be fairly formal
- Usually international arbitrators are selected from well-established arbitrator providers (392)

International Political (Public) Disputes (393)

Labor Arbitration (397): typically labor law arbitral decisions well-reasoned, written, and published

Sports Arbitration (401)

- Baseball Arbitration (common for athletes’ salaries; dispute between player + team owner): In baseball
arbitration, the arbitrator must select either the salary offered by management or the salary offered by
the player, but cannot issue a compromise decision. A benefit of this approach is that it encourages both
parties to negotiate their resolution and be reasonable in doing so, otherwise they risk the arbitrator
choosing the other party’s number/offer.

Online Arbitration (good for small disputes) (406)

AAA Clause (408)

R-42(b): Under the AAA commercial rules, unless a request for a reasoned award is made in writing by the
parties prior to the appointment of the arbitrators, the arbitrators need not render a reasoned award.

Non-Binding Arbitration (569)

(1) BROAD OR NARROW CLAUSE?—Whether they only want specific aspects of their contractual
relationship arbitrated (e.g. the amount of compensation)
- A broad clause should contain three critical expressions: “all disputes,” “in connection with,” and
“finally settled.”
(2) LOCATION OF THE ARBITRATION
- Considerations:
o Neutral/If international: no home-field advantage for either party
o Location should not cause excessive travel expenses by the arbitrators, witnesses, or parties’
counsel
o Procedural law of the arbitral site
(3) NOTICE PROVISION
(4) SUBSTANTIVE LAW (“Choice of Law” Provision)
- Particularly important for International Disputes
- Parties should mention the applicable laws or the principles for establishing the applicable law
(5) CHOICE OF ARBITRATOR
- 1.) How many arbitrators should arbitrate a proceeding? (usually 1 or 3)
o Depends on the amount of money at stake
 Small dispute  try to avoid the excess fees involved with employing 3 arbitrators
because such fees may actually exceed the contentious amount
 If its unclear from the beginning how large the stakes are  the parties can inset a
clause providing that there be three arbitrators for certain amounts in controversy
o Also depends on: the speed of the procedure; the ability to achieve a mix of subject matter and
legal expertise from numerous arbitrators, the consistency achieved by one arbitrator, and
improved communication between two party-appoint arbitrators
o Usually 1 arbitrator is sufficient
- 2.) Who is the appointing authority?
o Include time limits for the process of establishing the arbitral tribunal to avoid unnecessary
delays
o If there’s 1 arbitrator  both parties submit proposals to the appointing authority who will
then pick one that is proposed by one or both parties
o If there’s 3 arbitrators  each party selects 1 arbitrator and they decide on a 3rd neutral
arbitrator
- 3.) Qualities of the Arbitrators
o Parties may agree on or agree to exclude people of certain nationalities
o Do we want someone with special knowledge of an industry?
o An arbitrator with legal background and experience can be desirable since arbitration is still a
legal proceeding
(6)

- An arbitration agreement is invalid if its written in such a way that it prevents the challenger from
vindicating his/her rights (444)
- State Rights to invalidate arbitration agreements (451)
Vacating Aribitral Awards (462)

Party from Great Britain/England? (468)

Policy Arguments Against Mandatory Arbitration (469)

1
Except for the right of [my party] to seek injunctive relief or other equitable remedies and except for
[my party’s] right to bring suit to protect its confidential information and intellectual property rights,
any claim or controversy [note: do we want all things relating to this Agreement to be arbitrated? What
about fraud in the inducement of contract? Tort claims related to contract? Etc.] between the parties to
this Agreement, arising out of, or relating to this Agreement, or the breach thereof [or this Website?
Program? Software? Service?] shall be settled by binding arbitration to be administered by the
American Arbitration Association and its Commercial Arbitration Rules, as modified by this
Agreement. The number of arbitrators shall be one (1) and the arbitrator shall be agreed upon by the
parties within 14 days of parties receiving Notice that the filing requirements for arbitration have been
satisfied. If the parties cannot agree upon an arbitrator, a single neutral arbitrator [e.g. with legal and
computer expertise; whose been a lawyer w X yrs experience in a type of law… see arb qual tab] shall be
selected by the American Arbitration Association under its Commercial Arbitration Rules. The place of
arbitration shall be [Location: City, State, Country]. Unless the parties agree otherwise, any arbitration
proceeding shall be conducted in the English language. The arbitrator shall make a reasoned (contravenes
R- 46) award in writing that is consistent with the terms of this Agreement and which follows the
substantive law of [the State of X; name the State you want the law to follow], irrespective of any rules
on conflicts of laws. Arbitrations must be brought within a timely manner, which is agreed to be [a specific
period of time; e.g. one (1) year of us delivering the product—SOL; one year after the date of this
agreement]. Except as may be required by law, neither a party nor an arbitrator may disclose the existence,
content, or results2 of any arbitration hereunder without the prior written consent of both parties. The
arbitrator shall have the exclusive authority to resolve any dispute relating to the enforceability of this
Agreement, including, but not limited to any claim that all or any part of this Agreement is void or
voidable.3 Except as required by statute, the arbitrator will have no authority to award punitive damages
not measured by the prevailing party’s actual damages. You expressly agree that any claim, dispute and
controversy shall be arbitrated on an individual basis and not aggregated with the claims of any third
party; class action arbitration is prohibited.4

!!!If the parties are from different states or international, add:

 “The judgment on the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.”

1
Because it’s typically easier to enforce injunctive relief when its issued by courts (461), the agreement reserves
the right for [my client] to do so.
2
SEE P. 490 TO DETERMINE IF YOUR RESULT SHOULD BE PUBLISHED!
3
In Rent-a-Center, SCOTUS held that this provision is valid and, consequently, that the arbitrator can rule on
unconscionability of the arbitration agreement if the delegation clause itself was not unconscionable and the
parties clearly agreed to the clause.
4
In Stot-Nielson, SCOTUS held that unless both sides agree that class action is applicable, you can’t have it.
Since virtually no defendant will agree on a class action to arbitrate, as a practical matter there’s no such thing
as class action arbitration, so this clause is legal.
 - Consider adding “Rules of Discovery” sentence to either reduce or expand the amount of
discovery parties can engage in
- Consider the types of Relief/Damages/Remedies the arbitrator may award (e.g. Injunctions?
Punitive Damages? Specific Performance?) see tab!
- Consolidate Claims?: “You expressly agree that any claim, dispute and controversy shall be arbitrated
on an individual basis and not consolidated with the claims of any third party; class action arbitration
is prohibited.”
o Good for construction contracts (see tab)
- If Construction Contract  provide a “performance to continue during arbitration” clause!
-  include Condition Precedent (e.g. “try mediation first!”): The arbitration clause requires a
condition precedent that must be satisfied before the dispute proceeds to arbitration.
- IF PARTY MIGHT NEED INTERIM RELIEF! (e.g. injunctive relief immediately)  “I included a
clause for preliminary relief by incorporating the Optional Rules for Emergency Measures of Procedure
of the AAA Commercial Arbitration Rules (R-38) because…”
o “Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is
rendered or the controversy is otherwise resolved. Either party also may, without waiving any
remedy under this agreement, seek from any court having jurisdiction any interim or provisional
relief that is necessary to protect the rights or property of that party, pending the establishment of
the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the
controversy).”
- Would my parts benefit from drafting an arbitration agreement that makes it easier to vacate
arbitral awards? (465)

Unless otherwise specified, Expedited Procedures shall apply in any case in which no disclosed claim
or counterclaim exceeds $75,000
- If you NEED a quick award turnaround  Expedited Procedures, via E-9, provide that the
award shall be rendered not later than 14 days from the date of the closing of the hearing, whereas under
regular AAA Rules, the award is given within 30 days of the hearing.
- Expedited Procedures apply in cases involving claims less than $75,000 (or when the parties agree).
Under the Expedited Procedures, the hearing is typically limited to one day (see E-8(a)) and is scheduled
to take place within 30 calendar days of confirmation of the arbitrator’s appointment (see E-7).

Small cases (where no party’s claim exceeds $25,000): In small cases (where neither party has a claim
exceeding $25,000), the arbitrator will resolve disputes solely by having the parties submit documents, unless a
party disagrees with this method.

- Reasoned Opinions? (p. 20 of tabbed article)  could detract from finality

o Not typical in domestic commercial cases
o More typical in large, complex cases

- If TRADE SECRETS are a concern  provide for more stringent DISCOVERY rules

- If LARGE, LEGALLY COMPLEX CASE  might want to ask for more lenient APPEALS
PROCESS (p. 20 on tabbed article)

Reasoned Award? (490)

- Kinds of Cases:
o Not in securities arbitrations, even if large sums of money are at stake
 o (^other than this) used when Large Sums of Money Are At Stake
- Disadvantages:
o Invites the loser to search for flaws in the reasoning and ask a court to vacate the award (which
undermines the speed and cost benefits of arbitration over litigation) [undermines finality]
- Benefits:
o Provides disputants with a more understandable result
o Provides precedent, which can be useful to others
o Some believe disputants might be more frustrated by an award that simply states who won and
who lost and thus might be more likely to seek to vacate such an award

Explain the approach you took and why (“I adopt the expedited triple A rules & not the
general AAA rules & here’s why…” “I think this is a unique situation in which we need to
tailor the rules and here’s why…”):

Arbitration is praised for its ability to produce cost-effective, efficient, and quick resolutions to disputes. I
adopted the AAA Commercial Arbitration Rules because they will help ensure that [my client] can reap these
arbitral benefits. For example, R-22(b) generally limits discovery to the exchange of documents and identifying
witnesses and exhibits, which makes it less burdensome than the lengthy discovery process undertaken for
commercial litigation process. Likewise, R-22(a) grants the arbitrator authority to resolve disputes over the
exchange of information, which makes time-consuming pre-trial motions like discovery motions infrequent.
That the AAA is less drawn-out than litigation and permits less contentious outcomes will enable [my client] to
preserve its business relationships.
Although the arbitration agreement uses a standard AAA arbitration provision, it has been modified to
better suit the needs of [my clients’] business. The modifications and their rationales are discussed below, but I
will first address why I chose to modify a standard provision rather than craft an ad hoc arbitration
agreement. It is much less time-consuming to adopt one organization’s rules as an overall whole—with tailored
tweaks and specifications here and there—than it is to pick and choose rules and clauses generally.
Additionally, it’s worse for the relationship of the parties to argue through which rules to adopt for a long period
of time. It’s also worth nothing that the AAA has fine-tuned its language over many years of experience (e.g. its
inclusion of the phrase “or breach thereof” helps rebut the argument that the arbitration clause is no longer in
effect because a contract breach caused the contract to no longer be in effect). These considerations, coupled
with the overall difficulty of picking and choosing rules (e.g. you need to know what triggers the arbitration, the
applicable laws and provider, etc.) and its expensive nature, contribute to my decision to, for the most part,
adopt AAA’s model provision as a whole.

[Is the Law or Custom in the Industry more favorable to your client?]  if Custom of the Industry is
more favorable, say: “The AAA also benefits [my client] because industry custom is more favorable to [the
company] than the law (see e.g. R-47, providing that the arbitrator’s notion of equity, as opposed to the law, can
determine the arbitral decision and award.”

- Selection of Arbitrator: Number of Arbitrators as One (1)

(contravenes R-16a):
Although R-16(a) gives the AAA discretion to appoint three arbitrators, this arbitration agreement
limits the number of possible arbitrators selected to just one. If the amount of money at stake is not
high, I don’t want to risk the AAA appointing three arbitrators because [my party] will want to the
excess fees of employing more arbitrators as these fees could possibly excessed the contentious amount.
Another factor I considered is that it’s probably faster to have one arbitrator make a decision than three.
Nonetheless, the rest of the AAA’s rules for selecting the arbitrator remain intact. This is because the
R-12 provides that the AAA will appoint an arbitrator when the parties don’t agree on one. In many
jurisdictions, courts have the authority to appoint arbitrators when the parties cannot agree on one and
this may produce a costly, time-consuming, and unpredictable outcome. Adopting institutional rules like
AAA, instead of leaving this up to the court, is more efficient. Likewise, R-12 promotes efficiency in that
parties cannot delay arbitration by failing to cooperate with arbitrator selection process.

- Privacy of the Existence, Content or Results of the Arbitration

[AAA R-25 only applies to arbitrators’ confidentiality promise, so I wanted to extend this to the
parties; & the AAA Rules are silent on “Confidentiality of Award]:
Because R-25 only requires that arbitrator(s) maintain confidentiality of hearings, this
agreement includes a clause requiring the parties to maintain confidentiality as well. [this also protects
things like trade secrets from being made public] Additionally, AAA rules are silent on maintaining
confidentiality of arbitration awards, so the agreement expressly requires the parties to keep such
information private. This is included to avoid any public, reputational damage in the event of
losing.

To avoid the agreement being unenforceable due to unconscionability, I would not only concern
myself with substantive aspects of the clause, but procedural ones as well. For instance, I would ensure
that the print size was not too small and clearly legible (442).

- Remedies/Damages/Relief Awards
The agreement limits the application of R-47, which provides that the arbitrator may grant any
remedy of relief, by specifying within the scope of the agreement that punitive damages are not to be
granted.

The AAA does not necessarily employ lawyers as its commercial arbitrators