Introduction
This section discusses common aspects of arbitration. States differ in structure, but the general outlines of arbitration are fairly universal.
Mandatory, but not Binding
Most states have some form of arbitration. The common elements of all arbitration systems are:
States can require parties to go through arbitration, but they can not make the arbitration binding. The state can not take away a person's right to a trial.
Mandatory arbitration always occurs during the pretrial stage, either during or before the discovery process.
Every state provides a manner for some cases to be exempt from arbitration, such as cases over a specific minimum amount.
When the arbitrator (also called arbiter) reaches a decision, both parties have the right to have the matter sent to a trial.
There are some elements that may differ, however:
Some states allow non-attorneys to be arbitrators. Other states require arbitrators to be attorneys.
In some states, the party asking for a trial after the arbitrator's decision must pay the other side's attorney fees if s/he loses again at trial.
In some states the arbitrator is paid by the state. In other states the arbitrator is paid by the parties.
Paralegal Perspectives . . .
ARBITRATION
When mandatory arbitration began as an experiment with the courts, it seemed like a good way to lighten the burden on the courts and encourage parties to work matters out without going through a complete trial. The downside has been that in some cases attorneys have simply used arbitration as a means of increasing their own fees, charging for arbitration preparation, then charging for basically the exact same work in preparing for trial. The answer: Paralegal representation. In some states paralegals are allowed to represent a client in arbitration. All states should allow paralegals to be involved in arbitration. The problem: It would take money out of the pockets of attorneys.
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