When conducting a hearing, your goal as arbitrator is largely twofold: to provide the parties with a full opportunity to present their case and to arrive at a fair outcome. Sometimes that can be difficult. The hearing landscape can be dotted with pitfalls that lead to a less-than-optimal experience.
In this 90-minute webinar, arbitrator Raoul E. Drapeau provides a step-by-step approach to conducting the hearing. His unique perspective--honed by 45 years of experience in business management, teaching, lecturing, commercial arbitration, product development, invention and marketing—will provide a solid base of information about arbitration procedures, while explaining the role of the arbitrator. If you are preparing to conduct your first arbitration, or have previously conducted an arbitration hearing and weren’t pleased with how it unfolded or how you handled it, or perhaps with the outcome itself, this webinar is for you.
Register for this program and you can expect to
* Be guided through the practical aspects of all phases of the arbitration hearing, including the preliminary conference, document exchange, evidence, party management, witnesses, the award, and lots more.
* Learn how to best manage hearings, exert control over the process, and avoid common pitfalls.
* Hear best practices for managing preliminary and evidentiary hearings.
Remember, you can’t be too prepared when it comes to managing the arbitration hearing. This webinar will arm you with the knowledge and tools to manage it effectively.
WHO SHOULD ATTEND – New arbitrators and those with minimal hearing experience; ADR professionals who want to hear best practices and effective techniques for having better outcomes.
For more information, and to sign up, check out:
https://www.aaau.org/courses/fair-hearings-avoiding-the-pitfalls/14web026o/
Monday, September 15, 2014
Wednesday, April 9, 2014
THE SPECIALIST vs THE GENERALIST NEUTRAL
The usual rule of thumb in a high-tech case is for the parties to pick a neutral who is intimately familiar with the technology involved. Makes perfect sense. Or does it?
The case could be about pharmaceuticals, computers, medical devices, communications or anything else where the logical view is that the neutral(s) would know the manufacturers systems, models, specifications, processes and so on.
On the other hand, anyone so knowledgeable would no doubt have picked up some biases and prejudices about those very aspects; "this company's products are terrible"; "this product is great"; "nobody likes their execs", etc.
We all know that undisclosed conflicts of interest can be grounds for overturning an award. But couldn’t an argument be made that prior knowledge about industry specifics is nearly the same as doing private research, also not allowed.
It seems to me that someone who is broadly familiar with science and engineering in general and having extensive business practice and ADR experience, could approach the case with an open mind and thus be even better qualified to hear a high tech case.
The case could be about pharmaceuticals, computers, medical devices, communications or anything else where the logical view is that the neutral(s) would know the manufacturers systems, models, specifications, processes and so on.
On the other hand, anyone so knowledgeable would no doubt have picked up some biases and prejudices about those very aspects; "this company's products are terrible"; "this product is great"; "nobody likes their execs", etc.
We all know that undisclosed conflicts of interest can be grounds for overturning an award. But couldn’t an argument be made that prior knowledge about industry specifics is nearly the same as doing private research, also not allowed.
It seems to me that someone who is broadly familiar with science and engineering in general and having extensive business practice and ADR experience, could approach the case with an open mind and thus be even better qualified to hear a high tech case.
Saturday, April 5, 2014
TROLLS
As an independent inventor, I’m in that class of inventors who have little to no effective representation in Congress. The big boys - corporations, pharmaceutical manufacturers, universities and the like have the money to influence Congress to bend to their will. As a result, there have been a succession of bills introduced that make life even more difficult for us.
The most recent was the America Invents Act (AIA), enthusiastically pushed by its sponsors, spoken against by the few legislators who are supporters of independent inventors, but eventually passed. By the way, as is usually the case in such matters, knowledgeable independent inventors are never invited to testify on these pending laws.
One of the law’s notable features was the elimination of one of the most important features of the American patent system, "First to Invent". In that scheme, in effect since 1790 and enshrined in our Constitution Article 1, Section 8, the first person to invent something is the one who gets the monopoly protection of a patent. That seems eminently logical and “right”.
However, some corporations pushed to change the system, to First to File; that is, the first person to race to the patent office gets the patent. If that seems to put the independent inventor at a disadvantage, you’d be right.
Imagine yourself working in your garage on your invention, and after expending much time and money, you finally got it to work, and decided that now was the time to file for a patent. Meanwhile, MegaCorp with unlimited resources of money and personnel completed their proof-of-concept development months before you. They apply and get the patent, even though they started work long after you did.
That was the AIA. Now, in an attempt to address and abuse from organizations called Non-Operating Entities (NOE), but also called Patent Trolls, a new law is working its way through Congress. Again, independent inventors are not being called on to share their views.
Patent trolls are accused of being abusive defenders of patent rights. They will acquire patent rights and then vigorously defend them against individual companies and even whole industries; not because their own operating businesses are being affected by infringement, but because they know that the defendants often would rather settle than fight an extensive and expensive lawsuit.
The problem for independent inventors is that licensing our patents to a troll is one of the few ways for us to monetize our patents. Manufacturing and marketing it ourselves costs a lot of money, something most independent inventors don'r have a lot of. If the legislation removes that option, then only the richest inventors, or those who are successful in licensing it to an established manufacturer will succeed.
Again though, we have no say in the matter.
The most recent was the America Invents Act (AIA), enthusiastically pushed by its sponsors, spoken against by the few legislators who are supporters of independent inventors, but eventually passed. By the way, as is usually the case in such matters, knowledgeable independent inventors are never invited to testify on these pending laws.
One of the law’s notable features was the elimination of one of the most important features of the American patent system, "First to Invent". In that scheme, in effect since 1790 and enshrined in our Constitution Article 1, Section 8, the first person to invent something is the one who gets the monopoly protection of a patent. That seems eminently logical and “right”.
However, some corporations pushed to change the system, to First to File; that is, the first person to race to the patent office gets the patent. If that seems to put the independent inventor at a disadvantage, you’d be right.
Imagine yourself working in your garage on your invention, and after expending much time and money, you finally got it to work, and decided that now was the time to file for a patent. Meanwhile, MegaCorp with unlimited resources of money and personnel completed their proof-of-concept development months before you. They apply and get the patent, even though they started work long after you did.
That was the AIA. Now, in an attempt to address and abuse from organizations called Non-Operating Entities (NOE), but also called Patent Trolls, a new law is working its way through Congress. Again, independent inventors are not being called on to share their views.
Patent trolls are accused of being abusive defenders of patent rights. They will acquire patent rights and then vigorously defend them against individual companies and even whole industries; not because their own operating businesses are being affected by infringement, but because they know that the defendants often would rather settle than fight an extensive and expensive lawsuit.
The problem for independent inventors is that licensing our patents to a troll is one of the few ways for us to monetize our patents. Manufacturing and marketing it ourselves costs a lot of money, something most independent inventors don'r have a lot of. If the legislation removes that option, then only the richest inventors, or those who are successful in licensing it to an established manufacturer will succeed.
Again though, we have no say in the matter.
Thursday, March 20, 2014
FINALITY
One of the most attractive features of arbitration as compared to litigation & courtroom trials is the finality of it. When an award is issued by the arbitrator(s), it can only be challenged under extraordinary circumstances.
There are instances where an award can be effectively challenged in court. But it isn't simply because one of the parties didn't like the result. Among other reasons, it can be something like an undisclosed conflict of interest on the part of one of the arbitrators, or a refusal to hear a piece of evidence that proved to be important.
This avoidance of an appeals process naturally can save significant amounts of money and time. Another advantage to the parties is that they can get back to their business instead of focusing so much time and resources on non-productive legal activity.
On the other hand, some litigants might not want to arbitrate, just because it is final. But given the sure end point in sight with arbitration, win or lose, it is hard to see the benefit in litigation because of the significant cost in legal fees, expert fees, evidence collection costs and disruption of their business.
There are instances where an award can be effectively challenged in court. But it isn't simply because one of the parties didn't like the result. Among other reasons, it can be something like an undisclosed conflict of interest on the part of one of the arbitrators, or a refusal to hear a piece of evidence that proved to be important.
This avoidance of an appeals process naturally can save significant amounts of money and time. Another advantage to the parties is that they can get back to their business instead of focusing so much time and resources on non-productive legal activity.
On the other hand, some litigants might not want to arbitrate, just because it is final. But given the sure end point in sight with arbitration, win or lose, it is hard to see the benefit in litigation because of the significant cost in legal fees, expert fees, evidence collection costs and disruption of their business.
Friday, February 28, 2014
LITIGATE OR ARBITRATE?
You are the chief executive of a corporation that manufactures or uses technical or engineered products and systems. You have become embroiled in a dispute with a supplier or customer about some deficiency, quality control, lateness, patent or other typical business problem.
You have heard the horror stories about how long a court case could take and the attendant costs. Maybe you are getting advice from other principals in the company who think that your case is strong, and that "we should go to the mat on this one."
Then you realize that even if you win your case, it's not necessarily over. Either you or your opponent can appeal any decision, thereby dragging out the case for who knows how long. Meanwhile, the costs and aggravation will continue.
Fortunately, one of your executives is familiar with arbitration and suggests that might be a good way to resolve the dispute with some finality, and with arbitrators who have some knowledge about the technical fields involved.
Maybe you're lucky and you already have a standard arbitration clause in your contract with all your business partners. In that case, you can call for arbitration and set the process in motion.
But even if there is no existing arbitration clause (and if not, that's something that you should incorporate into future contracts), then you could always discuss that possibility with the other party. Since it will be in both your interests to gain the advantages of arbitration, it might not be a hard negotiation.
But there is one thing that is very important in keeping the costs of an arbitration less than a litigation, and that is the the rules that apply. More on this in a future posting.
You have heard the horror stories about how long a court case could take and the attendant costs. Maybe you are getting advice from other principals in the company who think that your case is strong, and that "we should go to the mat on this one."
Then you realize that even if you win your case, it's not necessarily over. Either you or your opponent can appeal any decision, thereby dragging out the case for who knows how long. Meanwhile, the costs and aggravation will continue.
Fortunately, one of your executives is familiar with arbitration and suggests that might be a good way to resolve the dispute with some finality, and with arbitrators who have some knowledge about the technical fields involved.
Maybe you're lucky and you already have a standard arbitration clause in your contract with all your business partners. In that case, you can call for arbitration and set the process in motion.
But even if there is no existing arbitration clause (and if not, that's something that you should incorporate into future contracts), then you could always discuss that possibility with the other party. Since it will be in both your interests to gain the advantages of arbitration, it might not be a hard negotiation.
But there is one thing that is very important in keeping the costs of an arbitration less than a litigation, and that is the the rules that apply. More on this in a future posting.
Friday, February 21, 2014
SHIFTING TIDE?
Peter Benner has written a short article for the Connecticut Law Tribune on the possible effect of the revision of the Commercial Rules by the AAA, and whether that will solve the organic problems within arbitration.
The problem is that arbitration is becoming just as lengthy and expensive as litigation. When that happens, the attorneys representing clients are likely to choose litigation (unless the contact between the parties prevents that), because it gives them more flexibility in chasing after evidence and offers the chance to appeal any decision.
It seems to me that this is an opportunity for administrative associations like the AAA to aggressively promote the use of arbitration clauses in corporate contracts. If the parties do that, then at least the rules can be defined in advance, and if enforced by the arbitrator(s), will limits abuse of the process by overly-aggressive attorneys. But success does require the arbitrators to take control of the hearings and not allow 'fishing expeditions' for evidence, for example.
If the parties do not have a arbitration clause already in force, and have to agree after the dispute to settle on rules, then those rules can be so loose as to defeat the basic purpose of arbitration - to provide a forum that is quick, final and relatively inexpensive.
It seems to me that arbitrations should be less expensive and quicker than litigation, but does require stern management of the process.
Thursday, February 20, 2014
BAD BEHAVIOR
Three years ago, the America Invents Act replaced our 220 year old first-to-invent system with a first-to-file system. Now, large corporations with their great resources have a decided advantage against independent inventors like me.
Now, Congress is at it again. They are attempting to shield large corporations from nuisance lawsuits and demand letters by "trolls", non-operating entities who acquire patent rights from inventors for the primary purpose of extorting money from corporations whom they accuse of infringement.
That problem has some validity in fact.
But the new legislation would go much further, and would undermine the ability of legitimate inventors to defend themselves from infringers, especially when they are deep-pocketed corporations.
Some of these changes would let infringers force a delay in proceedings by requiring the Patent Office to reexamine the validity of the patent in question, even multiple times. And worst, if the inventor loses, which would be likely if they are fighting the battle alone, then they would be required to pay the infringer's attorney fees.
Why does Congress continually side with large entities, when it was independent inventors who produced the inventions that have fueled our economy for so many years. Why? You know why. Follow the money.
Now, Congress is at it again. They are attempting to shield large corporations from nuisance lawsuits and demand letters by "trolls", non-operating entities who acquire patent rights from inventors for the primary purpose of extorting money from corporations whom they accuse of infringement.
That problem has some validity in fact.
But the new legislation would go much further, and would undermine the ability of legitimate inventors to defend themselves from infringers, especially when they are deep-pocketed corporations.
Some of these changes would let infringers force a delay in proceedings by requiring the Patent Office to reexamine the validity of the patent in question, even multiple times. And worst, if the inventor loses, which would be likely if they are fighting the battle alone, then they would be required to pay the infringer's attorney fees.
Why does Congress continually side with large entities, when it was independent inventors who produced the inventions that have fueled our economy for so many years. Why? You know why. Follow the money.
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