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Arbritration FAQ Mediation

FAQ: Why you might not mediate?

Golden Gate Bridge, Marin Headlands. not mediate
Why you might not mediate?

To Mediate or Not?

The key issue is whether a party is ready to seriously attempt a negotiated settlement. If a party is insisting on pre-conditions to a mediation or sees the mediation as an opportunity to “send a message” rather than an opportunity to resolve, then there may be little prospect that a successful resolution can be reached. However, once the parties are engaged in the process, even an apparently unwilling or reluctant participant may see the benefit of reaching a resolution.

There are very few types of disputes that cannot be mediated. An often cited example is judicial review where the issue is whether a public body or authority exceeded its powers. However, that does not mean that all judicial reviews are incapable of being resolved through mediation.

If one party or the Court proposes mediation, the other party is entitled to refuse to mediate or at least to state that they are not ready to mediate yet. Once mediation is proposed, there is no obligation to agree. However, a party who refuses to mediate should not take this decision lightly as this may have cost implications.

Ken_Strongman_003smAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration

FINRA Arbitration Motion in Limine

Motion in Limine
Motion in Limine

Arbitration has often been compared to the traditional courts.  The major difference is that the parties are able to proceed in a much more deliberate matter.  The final motion is a motion in Limine.

Motion in Limine

A motion in limine is a request for the arbitrators to rule on the admissibility of evidence in advance of the hearing. Parties may try to include other issues for ruling when filing motions in limine, including requests to dismiss one or more of the alleged claims. Arbitrators should treat any requests for dismissal of claims as motions to dismiss and respond to them in accordance with FINRA’s motion to dismiss rules. As with all motion practice, arbitrators should be alert to the possible misuse of motions as tactics to delay the hearing.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration FAQ Mediation

FAQ: When is mediation appropriate?

FAQ_Mediation Golden Gate

FAQ: When is mediation appropriate?

Mediation can take place at any stage from before legal proceedings are issued up until trial and even after trial. Obviously, the earlier mediation takes place, the better chance of saving costs, avoiding publicity and possibly preserving future relations between the parties. However, at a later stage in proceedings mediation may have a better chance of success as the issues in dispute are more clearly defined, the parties are clearer on their strengths and weaknesses and the parties are more focused on the possible benefits and risks in terms of outcomes and costs.

I have successfully mediated disputes before legal proceeding were initiated.  Often times these are business disputes or intellectual property/high technology disputes.  The parties were quite aware that if they took their disputes to court, it would be years before there was a resolution.  By that time, new technology innovations would make their dispute seem old and tired though legally valid.

I have also successfully mediated disputes after trial.  In these cases, one party does have a judgment from a court, but both parties want to completely end the litigation and stop any appeals that might negate the judgment.  

Naturally, mediation is appropriate and anytime.  Often a party has to file the lawsuit to preserve their legal rights and to put on notice to the other parties that there really is a dispute. 

Ken_Strongman_003smAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration

FINRA Arbitration Motions to Compel

motions to compel discovery
motions to compel discovery

Arbitration has often been compared to the traditional courts.  The major difference is that the parties are able to proceed in a much more deliberate matter.  Although arbitration is an informal process, a variety of matters may be subject to motion practice.

Motion to Compel Discovery

FINRA Rule 12509 provides that a party may make a motion asking the panel to order another party to produce documents or information if the other party has failed to respond to discovery requests, or objects to the production of documents or information under the rules. The rules require that these motions must include the disputed document request or list item, a copy of any objection thereto and a description of the efforts of the moving party to resolve the issue before making the motion.

Before ruling on a request, arbitrators must determine that a document is relevant or likely to lead to relevant evidence. Only after determining relevancy, should the arbitrators consider the cost or burden of production. If a party has demonstrated that the cost or burden of production is disproportionate to the need for the documents, arbitrators should see whether there are alternatives that can lessen the impact, such as narrowing the relevant time frame or scope of the request, or whether the other documents can provide the same information.

For issues involving privacy or confidentiality, arbitrators may want to consider ordering the redaction (removal) of names or other information, or having the parties sign confidentiality agreements. If a party claims a document is confidential, the burden is on that party to establish its confidentiality.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration FAQ Mediation

FAQ: What is the role of the mediator?

FAQ_Mediation Mendocino 02 Role
Mediator’s Role

Role of the Mediator

The role of the mediator is not set in stone. Typically the mediator acts as a neutral third party and facilitates rather than directs the process. At all times, the parties and not the mediator control the outcome of the process.

Establish a Process

A good mediator is somebody who is able to establish a process, keep that process moving and build on any momentum that may develop during the course of the mediation. A good mediator will quickly identify and understand the key issues and may challenge the parties to consider their respective strengths and their weaknesses as well as the future implications if the parties fail to reach a negotiated settlement.

In the mediations I conduct, I work hard to keep the parties working towards solutions.  I firmly believe that we are not done until we have a solution or solutions to all disputes between the parties.  The key skill I use is to keep listening to the parties concerns, hopes and desires for a good outcome.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration

A FINRA Arbitration: bar the defenses

bar the defenses
Bar the defenses

A FINRA Arbitration provides an opportunity to bar the defenses of the defendant based upon untimely or incomplete Answers.

Motion to Bar Defenses Due to Untimely or Incomplete Answers

FINRA Rule 12308 provides that the panel may, upon motion by a party, bar a party from presenting any defenses or facts at the hearing if the party did not file a timely answer. In addition, if a party answers a claim that alleges specific facts and contentions with a general denial, or fails to include defenses or relevant facts in its answer that were known to it at the time the answer was filed, the panel may bar that party from presenting the omitted defenses or facts at the hearing.

12308. Loss of Defenses Due to Untimely or Incomplete Answer

(a) If a party does not answer within the time period specified in the Code, the panel may, upon motion, bar that party from presenting any defenses or facts at the hearing, unless the time to answer was extended in accordance with the Code. The party may also be subject to default proceedings under Rule 12801, if the conditions of Rule 12801(a) apply.
(b) If a party answers a claim that alleges specific facts and contentions with a general denial, or fails to include defenses or relevant facts in its answer that were known to it at the time the answer was filed, the panel may bar that party from presenting the omitted defenses or facts at the hearing.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration FAQ Mediation

FAQ: What are the potential benefits of mediation?

Angel Island State Park. Benefits
Mediation Benefits

FAQ: What are the potential benefits of mediation?

It is:

  • A voluntary and confidential process where participants determine the outcome for themselves rather than it being determined by a Judge, jury or an Arbitrator.
  • Offers a wider range of possible outcomes than can ever be determined by a Court.
    Provides an opportunity for the parties to fully participate in the process and therefore, to feel very much part of a successful outcome.
  • Avoids the potential risk of the significant costs in litigation.
  • The mediator can act as an impartial facilitator to a resolution.
  • Ideally suited to multi-party litigation or otherwise complex disputes.
  • Mediation is also appropriate as a method of resolving interpersonal disputes such as those that arise in the workplace, in clubs, in an educational context, etc.
  • Even an unsuccessful mediation can educate the parties on the strengths and weaknesses of their case and the risks involved which may facilitate resolution in due course.
  • Can allow disputes to be resolved in circumstances where a necessary on-going relationship between the parties can be maintained.
  • It provides a timely resolution where as going to trial can take several years.

Ken_Strongman_003smAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration

FINRA Arbitration Motions to Dismiss the case

Neutrality_Ken Strongman - Dismiss
Motions to Dismiss

A FINRA Arbitration provides several motions to dismiss.  The following are motions to dismiss before or after the case-in-chief.

FINRA Rule 12504(a) Motions to Dismiss Before a Party Concludes its Case-in-Chief

FINRA believes that parties have the right to a hearing in arbitration. Therefore, motions to dismiss filed prior to the conclusion of a party’s case-in-chief are discouraged and granted only under limited circumstances. According to FINRA Rule 12504(a), the panel cannot act upon a motion to dismiss a party or claim, unless the panel determines that:

  • the non-moving party previously released the claim(s) in dispute by a signed settlement agreement and/or written release, or
  • the moving party was not associated with the account(s), security(ies) or conduct at issue.

If a party files a motion to dismiss on multiple grounds, including eligibility, the panel must decide eligibility first, pursuant to FINRA Rule 12206. If the panel grants the motion to dismiss on eligibility, it must not rule on any other grounds for the motion.

If filing a FINRA Rule 12504(a) motion, the party must do so in writing, separately from the answer, and only after filing the answer. Such motions must be filed at least 60 days in advance of the hearing, and the other parties will have 45 days to respond. Any reply must be made within five days of receipt of a response. FINRA staff will forward motions and responses to the full panel for review. The panel should ask the parties to provide briefs if it needs additional information to decide a FINRA Rule 12504(a) motion to dismiss.

Not only do FINRA Rule 12504(a) motions require the input of the entire panel, but the panel must also hold a hearing before it grants such a motion, unless the parties waive the hearing requirement. If the panel grants the motion, the decision must be unanimous and accompanied by a written explanation. If the panel denies the motion to dismiss, a party may not re-file it, unless specifically permitted by panel order.

FINRA Rule 12504(b) Motions to Dismiss After a Party Concludes its Case-in-Chief

The restrictions set forth in FINRA Rule 12504(a) do not apply to FINRA Rule 12504(b) motions to dismiss after a party concludes its case-in-chief. After the claimant has presented its case—including all documentary evidence and testimony—but before the respondent presents its case, the respondent may ask the panel to dismiss the claim on the grounds that the claimant failed to prove the allegations in the statement of claim or failed to prove a right to recovery. Generally, these motions are made orally at the hearing after the claimant’s presentation.

When ruling on motions to dismiss after a claimant has concluded its case-in-chief, arbitrators should view the evidence in the light most favorable to the claimant. If the claimant has presented credible evidence to support a recovery, the panel should deny the motion. However, if the testimony and documents do not support any possible recovery, the panel may grant the motion to dismiss the claim.

Both sides have invested a lot of time and effort in the arbitration. Arbitrators should be sure that all parties had a full opportunity to argue the motion to dismiss.

Consider the following issues before granting a motion to dismiss:

  • Did the claimant have the chance to call all witnesses? Why or why not?
  • Did the claimant meet its burden of proof? When determining this, remember to look at all evidence presented in the light most favorable to the claimant.
  • Does the claimant have any further witnesses, evidence or testimony to offer?

The panel may direct the respondent to present its case, even if the claimant’s case is weak and the respondent’s motion has some validity.

If the panel grants a FINRA Rule 12504(b) motion and dismisses all of the claimant’s claims after the presentation of the claimant’s case, the panel must still complete the following tasks:

  • render a written award under FINRA Rule 12904; and
  • consider how to allocate forum fees and costs among the parties.

If the panel grants a FINRA Rule 12504(b) motion to dismiss on some but not all of the claimant’s claims, the hearing would proceed as to the surviving claims.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration FAQ Mediation

FAQ: What is Mediation?

FAQ_Mediation Mendocino 02
What is Mediation?

Mediation is a form of alternative dispute resolution (ADR), which can be used as a way of resolving a dispute between two or more parties with the assistance of a mediator who acts as a neutral third party and facilitates the process with a view to the parties voluntarily negotiating a settlement of their dispute.  In all of the mediations in which I served as a mediator, I have never dictated the solution to the dispute to the parties.  I have offered suggestions and ideas that they may not have considered. 

Mediation usually has a structure, timetable and process established and agreed by the parties with the mediator which can help it to be a more effective dispute resolution process than a traditional settlement meeting. The process is private, confidential, without prejudice and non-binding, although the objective is to reach a resolution of the dispute by agreeing to binding settlement agreement.

It cannot be stressed enough that mediation is a completely voluntary process where the parties with the assistance and guidance of the mediator reach a solution to a dispute that is satisfactory to all parties.  The parties are in complete control of the solution. 

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.

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Arbritration

FINRA Arbitration Eligibility Motions

Eligibility Motions
Eligibility Motions

A FINRA Arbitration provides several motions to dismiss.  A motion to dismiss based on eligibility grounds is a request made to the panel by a party.  It is made prior to or after the conclusion of the case-in-chief.  It can eliminate some or all claims raised by the party filing a claim.

FINRA Rule 12206(b) Eligibility Motions

A respondent may file a motion to dismiss a case because of eligibility under FINRA Rule 12206, which states that no claim shall be eligible for submission to arbitration under the Code where six years have elapsed from the occurrence or event giving rise to the claim.

In addition to stating that the full panel will resolve any questions regarding eligibility of a claim, FINRA Rule 12206 also contains the following procedural requirements:

  • A party must file an eligibility motion in writing, separately from the answer, and only after filing the answer.
  • A party must file the motion at least 90 days before a hearing, and the other parties have 30 days to respond. Any reply must be made within five days of receipt of a response.
  • FINRA staff will forward the eligibility motion and all response papers to the full panel for review.
  • If a party files a motion to dismiss on multiple grounds, including eligibility, the panel must decide eligibility first.
  • Before granting a motion under this rule, the panel must hold a hearing on the record.
  • If the panel grants an eligibility motion, the decision must be unanimous, and must be accompanied by a written explanation.
  • If the panel determines that a claim was filed after the six-year eligibility cut-off and grants the eligibility motion, it cannot rule on any other grounds for dismissal.

The panel determines whether a claim meets the six-year eligibility requirement by reviewing the submissions, pleadings and arguments of the parties. When appropriate, the panel may give the parties a reasonable opportunity to conduct discovery. As with any discovery request, arbitrators have discretion to grant, deny or modify the request. If the arbitrators have additional questions about the eligibility of the claim, they should ask the parties to brief the issue. The arbitrators may find that there is a continuing occurrence or event giving rise to the dispute. For example, although a customer purchased stock 10 years ago, there are allegations of ongoing fraud starting with the purchase, but continuing to a date within six years of the date the claim was filed.

If the panel dismisses a claim on the grounds of eligibility, the non-moving party may withdraw any remaining related claims without prejudice and may pursue all claims, including the dismissed claim, in court. Before dismissing a claim, however, the arbitrators should carefully consider each party’s positions in their moving, response and reply papers and oral arguments, and must hold a hearing on the record. If the panel reaches a unanimous decision to grant the eligibility motion, it should inform FINRA of its ruling promptly and provide a written decision.

Ken Strongman, MediatorAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.