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Mediation Toolbox

I am a Nevada mediator, arbitrator, and  litigator with experience resolving hundreds of disputes through ADR. This Mediation Toolbox is designed to assist those involved in mediation in Nevada or federally to navigate the process. Please feel free to reach out to me if there are resources that should be added to this Toolbox.

What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Mediation
Why Mediation?
Three Things Mediation is NOT
Mediate Instead of Filing That Lawsuit: Trying to Compromise Before Starting a Lawsuit
(more…)

The Litigation Toolbox

The Litigation Toolbox

I am a Nevada business litigator, arbitrator, and mediator with experience litigating thousands of disputes as a litigator, arbitrator, Judge Pro Tem, and Special Master. This Litigation Toolbox is designed to assist those involved in litigation in Nevada or federally to navigate the process. My aim is for this Toolbox to be a knowledge resource center for litigants and advocates, and for those trying to understand the process better.  Please feel free to reach out to me if there are resources that should be added to this Toolbox. (more…)

The Arbitration Toolbox

The Arbitration Toolbox

I am a Nevada arbitrator, mediator, and  litigator with experience arbitrating hundreds of disputes.  This Arbitration Toolbox is designed to assist those involved in arbitration in Nevada or federally to navigate the process.  My aim is for this Toolbox to be a knowledge resource center for litigants and advocates who have a matter in arbitration, or for those trying to understand the arbitration process better.  Please feel free to reach out to me if there are resources that should be added to this Toolbox.

 

What is Alternative Dispute Resolution (ADR)?
Nevada Supreme Court Defines Arbitration
Nevada Law Defines “Arbitrator”
What Are Your Alternative Dispute Resolution Options in Las Vegas, Nevada? (more…)

Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met.  There is no requirement that the parties expressly identify the information as a “trade secret”.  Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact. Frantz v. Johnson, 116 Nev. 455, 465 n. 4, 999 P.2d 351, 358 n. 4 (2000).  Courts may consider, however, such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors.  Id., 116 Nev. at 467, 999 P.2d at 358-59.  The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner.  This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information.  NRS 600A.032.

LLC dissolution in Nevada

Checklist dissolve Nevada LLC

An LLC may be dissolved at any time specified in its articles of organization, upon the occurrence of an event specified in the operating agreement, the affirmative vote of all its members, or upon entry of decree of judicial dissolution.  NRS 86.491.  In circumstances of judicial dissolution of an LLC, “the District Court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business of the company in conformity with the articles of organization or operating agreement.”  NRS 86.495.

Dissolution requires distribution of an LLC’s assets in the following priority: (1) to creditors, including members who are creditors (does not include contributions); (2) to members in respect to their right to the profits and other compensation by way of income on their distribution; and (3) to members in respect of their contribution of capital.  NRS 86.521.  “Subject to any statement in the operating agreement, members share in the company’s assets in respect to their claims for capital and in respect to their claims for profit or for compensation by way of income on their contributions, respectively, in proportion to the respective amounts of the claims.” (more…)

Jay Young | Las Vegas, Nevada | Mediator

Mediation: Seven Things You Should Discuss With Your Client Before Mediation

Readiness Checklist for Mediation

Counsel should consider discussing the matters below with their client prior to mediating a litigated matter.  Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation.   For a printer-friendly version of this article, email the author.

Explain the Process of Mediation

Selecting a Mediator

  • Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
  • Describe how the mediator selection process works (if specified by contract or otherwise)
  • Determine whether an evaluative or facilitative mediator would be best for this case

Explain How the Status of the Dispute Influences the Mediation Process

  • Has suit/arbitration been filed?
  • Is trial/arbitration looming?
    • How long will trial/arbitration take to a final resolution?
    • Have there been any continuances?
    • Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
  • Are there pending dispositive motions before the court/arbitrator which create some risk?
    • How should that risk inform the client’s decision-making?
    • Discuss your honest assessment of chances of success on the pending motion
    • Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
  • Has the judge/arbitrator made any preliminary decision in the dispute?
    • Has the judge/arbitrator indicated an early assessment of either party or their case?
    • Either explicitly or implicitly?
  • What is the status of discovery?
    • How much is completed?
    • Are party depositions completed?
    • Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
    • Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
    • What discovery needs to be completed?
    • What is the estimated cost of completing discovery?
    • Are expert witnesses needed?
    • What is the estimated cost of the expert witness through the close of discovery?
    • What is the estimated cost of the expert witness through the end of trial?
  • Regarding previous settlement discussions:
    • What are the impediments to settlement presently?
    • How can the client and counsel best seek the assistance of the mediator to overcome those impediments?

The Impact of Opposing Counsel on the Case and the Mediation

  • Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
  • Discuss how a mediator may assist the parties in dealing with opposing counsel
  • Discuss the opposing counsel’s likely approach to the mediation

Settlement Authority at Mediation

  • Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
  • Discuss the pros and cons of settlement at certain dollar ranges
  • What is the likely result for the client on its best day should the matter go to trial?
  • What is the likely result for the client on its worst day should the matter go to trial?
  • What is the likely result for the client on an average day should the matter go to trial?

Anticipated Costs of Litigation or Arbitration

  • What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
    • The pre-trial costs
    • The cost to try the case
    • How much has the client spent to date on the litigation
  • Is there a right to appeal an ultimate resolution by the court/arbitrator?
    • Whether an appeal is available only at the end of the case
    • What is the likelihood of either party to appeal should they lose at trial?
  • An estimated of the cost to appeal
    • An estimated time to complete appeal
    • Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
  • Cost and Fee-shifting:
    • Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
    • Are litigation costs are recoverable from the other side
    • The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
  • How long it may take for the court or arbitrator to resolve the case

 What Are the Chances of Success at Trial?

  • What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
  • If you obtain a judgment, does the defendant have assets available for collection?
  • What is the attorney’s honest assessment of the strength of the opposing case?
  • The likelihood that the trial will bring adverse publicity
  • Discuss the risks of an adverse judgment, including:
    • The availability of adequate liability insurance
    • The availability of adequate funds or assets to satisfy a judgment
    • Whether a judgment jeopardizes the survival of the client’s business

Jay Young is a mediator in Las Vegas, Nevada.

Download the PDF to discover the advantages to forming a Nevada Corporation over a Delaware Corporation.

A Comparison of Nevada and Delaware Corporate Laws

In Nevada, the following actions require shareholder approval in the manner designated by the corporation’s governing documents or by a majority of shares if the documents are silent on the issue. The acts are required by Nevada’s corporate statutes linked below:

  1. Amending the corporation’s articles of incorporation;
  2. Election of directors;
  3. Removal of a director;
  4. Granting voting rights to “control shares” acquired by an “acquiring person” under the “acquisition of controlling interest” statutes;
  5. Merger, conversion, or exchange;
  6. The sale of all of the corporation’s property and assets; and
  7. Dissolution of the corporation.

    Corporate Actions Requiring Shareholder Approval in Nevada

    Corporate Actions Requiring Shareholder Approval in Nevada

Officers and Directors Owe Fiduciary Duties to the Corporation

Officers and Directors Owe Fiduciary Duties to the Corporation

In Nevada, both the officers and directors of a corporation owe it fiduciary duties.  NRS 78.138.  Those duties include the duty of care and the duty of loyalty.  A fiduciary is a “person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor” and loyalty.  Black’s Law Dictionary (8th ed.2004).  NRS 78.138 and 78.139 declare the duties specifically owed by a corporation’s fiduciaries.   (more…)

Elections for Directors of a Corporation

Elections for Directors of a Corporation

The election of directors of a corporation must be held at the annual shareholders meeting by a “plurality of the votes cast at the election” unless the corporation’s articles of incorporation or bylaws require more than a plurality. NRS 78.330.  If for any reason directors are not elected pursuant to NRS 78.320 or at the annual meeting, they may be elected at any fairly noticed special meeting of the shareholders. NRS 78.330(1).    Moreover, shareholders owning at least 15% of the voting power may apply to the district court to order the election of directors if a corporation fails to hold a meeting within 18 months of its last meeting.  NRS 78.345(1). (more…)

What Are They and Why You Must Hold and Document Them Correctly

Corporate Annual Meetings: What Are They and Why You Must Hold and Document Them Correctly?

Corporate Annual Meetings: What Are They and How to Hold and Document Them Correctly            

A corporation in Nevada is recommended to hold an annual meeting of its shareholders or members.  The meeting may be held anywhere, but must be held in the location and manner provided for in the articles of incorporation and/or bylaws of the corporation.  Unless otherwise provided in the articles of incorporation or bylaws, the entire board of directors, any two directors, or the president may call annual and special meetings of the shareholders and directors.  NRS 78.310. (more…)

Business Entities: Initial List of Officers and Directors and State Business License.

Business Entities: Initial List of Officers and Directors and State Business License.

One of the requirements to start a new corporation in Nevada is to complete and file an Annual List of Officers, Directors, and Resident Agent with the Secretary of State’s office “on or before the last day of the first month after filing the articles of incorporation.”  NRS 78.150. (more…)

Business Entities: What is a Registered Agent in Nevada?

Business Entities: What is a Registered Agent in Nevada?

In legal terms, a Registered Agent (“RA”) is a person or business who is designated by a business entity registered with the state to receive service of process when that entity is sued.  Service of process is the formal procedure for informing a company that legal action has been filed against it and requiring it to file a response to the same.  NRS Chapter 77.

Since a business such as a corporation or limited liability company is not a person, the law requires that a single person be named to accept service of process.  A business must therefore designate its RA by filing a form with the Secretary of State.  Thereafter, once the RA is served with process papers, the entity is deemed to have received the same and its obligation to respond is triggered.

            A joint venture is a contractual relationship in the nature of an informal partnership wherein two or more persons conduct some business enterprise, agreeing to share jointly, or in proportion to capital contributed, in profits and losses.  A prime example we see often is a venture for the development of land.  In this example, one venturer may own real property and may agree to allow a second venturer to build improvements (an office building, for instance) on the real property and that the venture will sell the real property with the improvements and share in the profits at an agreed-upon rate. (more…)

The Nevada Deceptive Trade Practices Act[i] is a comprehensive consumer protection act, many portions of which apply to all businesses and occupations. If a person makes false or misleading representations or uses deceptive practices in the course of his or her business or occupation, that person may be subject to restraining orders, fines, and criminal penalties.[ii] This Act makes pyramid schemes, [iii] false or misleading solicitation of charitable contributions, [iv] and certain acts with respect to contests, [v] door-to-door sales, [vi] and credit service organizations[vii] “deceptive trade practices” and subjects the person performing any such acts to the penalties listed above. In addition, a victim of deceptive trade practices under this Act can bring an action against the wrongdoer for damages, costs, and reasonable attorney’s fees.[viii]

[i] NRS Chapter 598.

[ii] NRS 598.0979(1), 598.0999.

[iii] NRS 598.110.

[iv] NRS 598.1305.

[v] NRS 598.136 – 598.138.

[vi] NRS 598.140 – 598.2801.

[vii] NRS 598.741 – 598.782.

[viii] NRS 41.600.

By Robert Rosenthal, Esq. and Jay Young, Esq.

Employers, do your zero drug tolerance policies allow you to discipline an employee for using marijuana if the employee is legally using medical marijuana in Nevada?  The answer may surprise you.

A recent federal court held that just because marijuana is illegal under federal law does not bar a discrimination claim by an employee based on conduct protected by state medical marijuana laws.  In other words, discipline your employees with caution.

Nevada’s law goes even farther.  Here, even though an employer does not have to permit an employee to use marijuana in the workplace, it is required to accommodate an employee’s need for medical (not recreational) marijuana.

NRS 453A.800  Costs associated with medical use of marijuana not required to be paid or reimbursed; medical use of marijuana not required to be allowed in workplace; medical needs of employee who engages in medical use of marijuana to be accommodated by employer, other than law enforcement agency, in certain circumstances.  The provisions of this chapter do not:

  1. Require an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana.
  2. Require any employer to allow the medical use of marijuana in the workplace.
  3. Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b)  Prohibit the employee from fulfilling any and all of his or her job responsibilities.

The statute has quite a few inherent problems, including:

  1. It does not define “employee.” Therefore, employers cannot be sure whether it applies to only current employees or whether it also applies to applicants;
  2. Second, there is no enforcement mechanism for the statute, leaving an employer unable to predict liability and an employee without a way to challenge an employer’s failure to meet the statute’s requirements;
  3. In requiring an employer to accommodate the need for medical marijuana, the statute ventured well beyond any mandate imposed by Article 4, Section 38 of the Nevada Constitution; and
  4. The statute provides two different accommodation standards by first stating that an employer does not need to modify those “job or working conditions” that are “based upon the reasonable business purposes  of the employer,” and then stating that an accommodation is not reasonable if it would prohibit an employee from fulfilling any and all job responsibilities.

To our knowledge, this statute has not been tested by the courts.  That leaves this area a minefield for the unwary.  If you have an employee who is eligible for medical marijuana, contact an employment attorney to discuss your options before disciplining for marijuana use.

Partnership by Estoppel in Nevada

Partnership by estoppel is a statutory recognition that someone “represents himself or herself, or consents to another representing him or her to any one, as a partner” and should therefore be held responsible as a partnership under the law.  NRS 87.160(1).  A partner is an association of two or more persons doing business together for a profit.  NRS 87.060(1).

In other words, if I tell someone that you are my partner and you agree or do not correct me, that person has the right to presume we are acting as a partnership.  In a partnership, the partners have unlimited personal liability for the acts of the partnership and the acts of  their partners, so holding oneself out as a partner can have huge legal implications.  NRS 87.433.   Nevada’s Supreme Court has held that the consent to be treated as a partnership may be reasonably implied from the conduct of the parties.

The Moral: unless you want to have unlimited liability for the acts of that person, don’t say they are your partner.

Nevada Partnership Formation and Law

Nevada Partnership Formation and Law

I hear people refer to those with whom they do business as their “partners” frequently.  I even hear this from people who are really shareholders in a corporation or members in a limited liability company.  I am fairly certain that if most of them understood the potential liability of forming a true partnership, they would never call themselves someone’s partner ever again.  Partnerships are relatively easy to form (beware: some court decisions and Nevada’s statutes have held that a partnership can be formed just by telling those with whom you are doing business that you and another person are “partners”), requiring simply an association of two or more persons doing business together for a profit.  NRS 87.060(1).  Every partner is a fiduciary to the other partner(s).  That means the partner has a legal duty to act in the best interests of his or her partners and of the partnership rather than acting in his or her own interest.  NRS 87.210. (more…)

Doing Business in Nevada

Howard & Howard published its comprehensive guide to doing business in Nevada recently.  This impressive volume should be on the shelf of every business owner as a handy resource to answer your questions about starting and operating a Nevada business from soup to nuts.  The Table of Contents below shows the breadth of the coverage.  The book is well worth the $25.00 list price, but if you come to the Howard & Howard Las Vegas office and mention this blog, Jay Young will give you a free copy.  Get yours today!

 

 

Contents

  1. An Overview of Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
  2. Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
  3. Limited Liability Companies . . . . . . . . . . . . . . . . . . . . . . 31
  4. Other Business Entities . . . . . . . . . . . . . . . . . . . . . . . . . . 43
  5. Foreign Qualification to do Business in Nevada . . . . . . . . 87
  6. Business Name Registration Requirements . . . . . . . . . . . . 90
  7. Purchase and Sale of Businesses and Entities. . . . . . . . . . . 92
  8. Mergers, Conversions, Exchanges, and Domestication . . . 93
  9. Business Regulation and Licensing . . . . . . . . . . . . . . . . . . 98
  10. Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
  11. Purchase and Sale of Property. . . . . . . . . . . . . . . . . . . . 103
  12. Deeds of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
  13. Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
  14. Construction Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
  15. Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
  16. Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
  17. Mineral Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
  18. Condemnation / Eminent Domain. . . . . . . . . . . . . . . . 143
  19. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
  20. Labor and Employment Law . . . . . . . . . . . . . . . . . . . . 153
  21. Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
  22. Gaming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
  23. Franchise Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
  24. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
  25. Securities Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 225
  26. Trusts and Estate Planning. . . . . . . . . . . . . . . . . . . . . . 231
  27. Family Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
  28. Tribal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
  29. Anti-Trust Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
  30. Consumer Protection Laws. . . . . . . . . . . . . . . . . . . . . . 263
  31. Reporting Requirements for Foreign Direct Investment 269
  32. Electronic Transactions . . . . . . . . . . . . . . . . . . . . . . . . 272
  33. Financing Investments . . . . . . . . . . . . . . . . . . . . . . . . . 275
  34. Financial Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . 283
  35. Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
  36. Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
  37. Marijuana Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
  38. Wine Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
  39. Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

Doing Business in Nevada: A Practical Guide (co-author) 2017.  This guide is a must for any company doing business in Nevada.  It covers everything from how to properly form a business to leases, corporations, limited liability companies, foreign qualifications to do business in Nevada, business name registration requirement, purchase and sale of businesses and entities, mergers, conversions, exchanges, and domestication of business, business regulation and licensing, real estate, deeds of trust, leases, construction law, easements, zoning, minerals, family law, dispute resolution, taxation, franchising, securities regulation, estate planning, banking, and marijuana law.  Contact Jay for your copy.

Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.  Also available on Amazon!

A Litigator’s Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Buy here. Also available on Amazon!

 

 

A Litigator’s Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every busy trial attorney practicing in Federal Court. With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to courtroom use or look up the rule/statute based on the concept. Buy here. Also available on Amazon!

 

Nevada State Court Litigation Checklist (2nd Edition) (Your Legal Guides 2016).  This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

A Litigator’s Guide to Nevada Evidentiary Objections (2nd Edition) (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Organized logically, it is cross-referenced to the Federal Rules of Evidence as well as Nevada’s evidence statutes.  Buy here.

 

A Litigator’s Guide to Nevada Rules of Evidence (2nd Edition) (Your Legal Guides 2016).  A Pocket book for every busy trial attorney whether practicing in Federal Court or in State Court. Tracks both Nevada and the Federal Rules of evidence in one source! With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to Nevada’s statutes, or look up the rule/statute based on the concept.  Buy here.

 

Nevada Civil Practice Manual, Chapter 26: Pre-Judgment Remedies, Jay Young (co-author), State Bar of Nevada Publication (LexisNexis Matthew Bender), 5th Ed. (2005-2016).  “The Nevada Civil Practice Manual is written and edited entirely by a team of volunteer attorneys and judges, all of whom actively practice law in Nevada. Their hands-on knowledge of Nevada law and its courts was invaluable in the development of this publication, and their expertise greatly enhances its contents. The publication is managed by the State Bar of Nevada.”

The Self Help Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides lay litigants through all the steps they need to take from initial filing to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

The Self Help Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows lay litigants to instantly find the right objection to make in the heat of battle during trial.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

The Self Help Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every every lay litigant in Federal Court. With this pocket book, litigants can find the correct Federal Rules based on the concept.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

The plaintiff in a lawsuit is allowed to seek as many remedies as are available to her and may choose the one which is most beneficial to her.  The doctrine of election of remedies requires:

  1. The existence of two or more remedies;
  2. Inconsistency between the remedies; and
  3. Choice of one or more of the remedies.[1]

(more…)

How Does a Party Prosecute an Action for Misappropriation of Trade Secrets?

NRS 600A.030(2) defines “misappropriation” as:

(a) Acquisition of the trade secret of another by a person by improper means;

(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(c) Disclosure or use of a trade secret of another without express or implied consent by a person who:

(1)  Used improper means to acquire knowledge of the trade secret;

(2)  At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:

(I) Derived from or through a person who had used improper means to acquire it;

(II)  Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(III)  Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(3)  Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

NRS 600A.040 provides injunctive relief for the actual or threatened misappropriation of trade secrets, stating;

  1. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction must be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time to eliminate commercial or other advantage that otherwise would be derived from the misappropriation.

* * *

  1. In appropriate circumstances, the court may order affirmative acts to protect a trade secret. As used in this subsection, “affirmative acts” includes, without limitation, issuing an injunction or order requiring that a trade secret which has been misappropriated and posted, displayed or otherwise disseminated on the Internet be removed from the Internet immediately.

In Frantz, the Nevada Supreme Court found misappropriation of trade secrets based on the fact that: (l) lists containing information were missing after the former employee left the job; (2) the former employee contacted the plaintiff’s customers to offer “more competitive pricing;” and (3) the former employee’s phone records and other evidence indicated calls to plaintiff’s customers.  As a result, the former employee was liable for misappropriation of trade secrets.   The Court further found that the competitor had misappropriated trade secrets when the competitor hired the former employee, announced that competitor intended to compete against plaintiff by taking all of plaintiff’s customers, and the competitor hired employees from other competitive companies and asked them to use their knowledge about their former employers’ pricing structure and customer base.  Id.

To prove misappropriation under NUTSA, a plaintiff must plead and prove: (1) the existence of a valuable trade secret as defined by the statute; (2) misappropriation through use, disclosure, or nondisclosure of use of the trade secret; and (3) the misappropriation was wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose.  Frantz, 116 Nev. at 466, 999 P.2d at 358.  The Court has wide discretion in calculating damages, subject only to a review for abuse of discretion.  Id. (citing Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951 P.2d 73, 74 (1997) (citations omitted)).

Abraham Lincoln said: “Discourage Litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”  

So, your attorney has asked if you will agree to mediate your legal dispute.  Do you understand what that means?  This articles below explain mediation and what you can expect from the process and from your mediator.

What Is Mediation?
What is the Role of the Mediator?
What is Your Role at Mediation?
How Does Mediation Compare to Litigation?
Why Mediate?
Who May Attend The Mediation?
Is Mediation Confidential?
What Will Happen At The Mediation?
What Is A Separate Session?
Can You Speak With Your Attorney Privately Any Time You Want?
How Long With Mediation Last?
What Helps To Get The Case Settled?

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What Helps To Get The Case Settled?

Everything I have covered in this article is designed to assist you in trying to resolve your dispute.  The more you prepare, the more likely you are to reach a settlement.  Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise.  If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you.  If you are an injured party, you may likely feel that no amount of money can really make the past go away.  Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation.  The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value.  Jurors are strangers to your case and may have differing beliefs and attitudes toward you.  Jurors are often suspicious of people who bring lawsuits and of their attorneys.  They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money.  This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify.  On the other hand, juries tends to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished.  Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias.  Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

How Long Will the Mediation Last?

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process.  The more complex the problem, the more likely that the mediation will take some time to come to a conclusion.  I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter.  Most business mediations take at least a half a day, but complex matters can go a full day or longer.  Bring any item with you that you need to be comfortable.  Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Can You Speak With Your Attorney Privately Any Time You Want?

            Yes!  All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What Is A Separate Session?

A separate session is sometimes referred to as a caucus or a private session.  It is simply a private meeting between a mediator and one party (with that party’s counsel).  I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall, and will not be able to hear one another’s separate session.  I then meet separately with each party.  These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact.  Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another.  It does not mean that I am in the other room “drinking the kool-aid” being served by the other side.  Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution.  During a separate session, a mediator may simply gather information before even asking either party to make any offer.  Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What Will Happen At The Mediation?

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet.  I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs, and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better.  Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present.  I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session.  In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding.  Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions.  I will ask for a commitment to the process of the mediation.  You should be prepared to commit to making a good faith effort to settle your differences at mediation.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Is Mediation Confidential?

Yes, mediation proceedings are confidential.  There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand:  1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side.  I will absolutely hold those in confidence unless you later authorize me to share that information with someone.  The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement.  The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means.  This point is so important that it is written into the law.  First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”  Nevada Revised Statutes 48.105.  Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court.  Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings.  Nevada Revised Statutes 48.109(3).  Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.”  Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent.  Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential.  Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential.  I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential.  There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information.  Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Who May Attend The Mediation?

All parties directly involved in the dispute should attend the mediation.  You and your attorney, as well as the other party and their counsel need to appear.  Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone.  If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person.  If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process.  Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What is Your Role?

             In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation.  Much of that presentation, if not all, focuses on the past.  In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important advisor to you, but you play a more central role.  I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward.  I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet.  Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future.  Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What is the Role of the Mediator?

As a mediator, I believe my first role is to understand the dispute between the parties.  The parties to the suit have the most information about the issues that they currently face.  To help them reach a resolution, I need to understand the genesis of the dispute through its current status.  Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute.  Your brief should not be a trial advocacy brief, or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me.  You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims.  Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

  • A factual summary, including any factual disputes;
  • A short statement outlining the type of work/business of every party, if relevant;
  • A chronology of events, if relevant;
  • A glossary of technical terms, if relevant;
  • A list of the important parties and their relation to the dispute;
  • An outline of the legal issues;
  • A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);
  • A candid evaluation of the relative strengths and weaknesses of each party’s case;
  • A procedural history of the litigation, and any upcoming deadlines, including a trial date;
  • A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);
  • Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and
  • Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential.  There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other.  If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side.  Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute.  I do not “take sides”— I am not a judge, jury, or an advocate.  My job is to help each side come to an agreement.  You are the one who decides if you are willing to accept any offer made by the other party.  I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward.  At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear.  I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement.  Most parties to mediation at one time or another express unrealistic goals or settlement offers.  Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground.  As I do so, my goal is to guide the process in a fair fashion.  Sometimes that means discussing money being paid from one side to another.  Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party.  These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Why Mediate?

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced litigator can point to cases they won when they didn’t think they had a chance winning.  They can also point to times when if there was any justice, they would have won, but lost.  There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.  A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision.  The study surveyed thousands of cases in California and New York over a five year period.  It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time.  In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however.  Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them.  Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs who fared worse than the last offer, received on average $43,000 less than the last offer given before trial.  Some studies suggest that 95% or more of lawsuits settle rather than go to trial.  Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later?  Doing so will save time, aggravation, stress, and money.  That said, mediation will not be an easy process.  At times, you may feel uncomfortable, pressured, and perhaps even emotional.  If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible.  It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal.  Once the parties have come this close to a settlement, the last thing they should do is to give up.  The easy answer will be to walk out the door in frustration.  But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation.  If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand.  Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable.  If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit, and allow the mediator a chance to give you a reason to stay.  If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Mediation FAQ: How Does Mediation Compare to Litigation?

Litigation is about proving your case and having a judge or an arbitrator declare a winner; one party wins and another loses.  In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor.  Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will.  Mediation is designed to try to find a resolution that is a win-win.  Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation.  Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points.  Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does.  Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories.  I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak.  Be honest about your “bad facts”.  All cases have bad facts and neither yours nor your opponent’s case is an exception.  Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future.  It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong.  You will lose all control over the outcome.  Conversely, by mediating your dispute, you can maintain control over the outcome.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

What Is Mediation?

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting.  It is more akin to marriage counseling than litigation.  The mediator will not be deciding any outcome, but will try to get the parties to come to an agreement with which they can both live.  According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. 

Since no two disputes are alike, no two solutions will be the same.  The process of how mediation proceeds will therefore depend largely on the needs of those involved.  I will attempt to illustrate some of the possible ways a mediation might proceed.

 

Jay Young is a mediator in Las Vegas, Nevada.

Abraham Lincoln said: “Discourage Litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”  

 
So, your attorney has asked if you will agree to mediate your legal dispute.  Do you understand what that means?  This article explains mediation and what you can expect from the process and from your mediator.

What Is Mediation?

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting.  It is more akin to marriage counseling than litigation.  The mediator will not be deciding any outcome, but will try to get the parties to come to an agreement with which they can both live.  According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives. 

Since no two disputes are alike, no two solutions will be the same.  The process of how mediation proceeds will therefore depend largely on the needs of those involved.  I will attempt to illustrate some of the possible ways a mediation might proceed.

How Does Mediation Compare to Litigation?

Litigation is about proving your case and having a judge or an arbitrator declare a winner; one party wins and another loses.  In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor.  Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will.  Mediation is designed to try to find a resolution that is a win-win.  Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation.  Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points.  Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does.  Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories.  I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak.  Be honest about your “bad facts”.  All cases have bad facts and neither yours nor your opponent’s case is an exception.  Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future.  It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong.  You will lose all control over the outcome.  Conversely, by mediating your dispute, you can maintain control over the outcome.

Why Mediate?

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result.  Every experienced litigator can point to cases they won when they didn’t think they had a chance winning.  They can also point to times when if there was any justice, they would have won, but lost.  There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator.  A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision.  The study surveyed thousands of cases in California and New York over a five year period.  It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time.  In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however.  Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them.  Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs who fared worse than the last offer, received on average $43,000 less than the last offer given before trial.  Some studies suggest that 95% or more of lawsuits settle rather than go to trial.  Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later?  Doing so will save time, aggravation, stress, and money.  That said, mediation will not be an easy process.  At times, you may feel uncomfortable, pressured, and perhaps even emotional.  If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible.  It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal.  Once the parties have come this close to a settlement, the last thing they should do is to give up.  The easy answer will be to walk out the door in frustration.  But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation.  If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand.  Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable.  If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit, and allow the mediator a chance to give you a reason to stay.  If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

What is the Role of the Mediator?

As a mediator, I believe my first role is to understand the dispute between the parties.  The parties to the suit have the most information about the issues that they currently face.  To help them reach a resolution, I need to understand the genesis of the dispute through its current status.  Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute.  Your brief should not be a trial advocacy brief, or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me.  You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims.  Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

  • A factual summary, including any factual disputes;
  • A short statement outlining the type of work/business of every party, if relevant;
  • A chronology of events, if relevant;
  • A glossary of technical terms, if relevant;
  • A list of the important parties and their relation to the dispute;
  • An outline of the legal issues;
  • A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);
  • A candid evaluation of the relative strengths and weaknesses of each party’s case;
  • A procedural history of the litigation, and any upcoming deadlines, including a trial date;
  • A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);
  • Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and
  • Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential.  There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other.  If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side.  Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute.  I do not “take sides”— I am not a judge, jury, or an advocate.  My job is to help each side come to an agreement.  You are the one who decides if you are willing to accept any offer made by the other party.  I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward.  At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear.  I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement.  Most parties to mediation at one time or another express unrealistic goals or settlement offers.  Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground.  As I do so, my goal is to guide the process in a fair fashion.  Sometimes that means discussing money being paid from one side to another.  Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party.  These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

What is Your Role?

             In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation.  Much of that presentation, if not all, focuses on the past.  In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important advisor to you, but you play a more central role.  I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward.  I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet.  Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future.  Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

Who May Attend The Mediation?

All parties directly involved in the dispute should attend the mediation.  You and your attorney, as well as the other party and their counsel need to appear.  Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone.  If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person.  If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process.  Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

Is Mediation Confidential?

Yes, mediation proceedings are confidential.  There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand:  1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side.  I will absolutely hold those in confidence unless you later authorize me to share that information with someone.  The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement.  The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means.  This point is so important that it is written into the law.  First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”  Nevada Revised Statutes 48.105.  Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court.  Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings.  Nevada Revised Statutes 48.109(3).  Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.”  Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent.  Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential.  Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential.  I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential.  There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information.  Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

What Will Happen At The Mediation?

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet.  I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs, and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better.  Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present.  I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session.  In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding.  Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions.  I will ask for a commitment to the process of the mediation.  You should be prepared to commit to making a good faith effort to settle your differences at mediation.

What Is A Separate Session?

A separate session is sometimes referred to as a caucus or a private session.  It is simply a private meeting between a mediator and one party (with that party’s counsel).  I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall, and will not be able to hear one another’s separate session.  I then meet separately with each party.  These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact.  Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another.  It does not mean that I am in the other room “drinking the kool-aid” being served by the other side.  Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution.  During a separate session, a mediator may simply gather information before even asking either party to make any offer.  Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

Can You Speak With Your Attorney Privately Any Time You Want?

            Yes!  All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.

How Long Will the Mediation Last?

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process.  The more complex the problem, the more likely that the mediation will take some time to come to a conclusion.  I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter.  Most business mediations take at least a half a day, but complex matters can go a full day or longer.  Bring any item with you that you need to be comfortable.  Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

What Helps To Get The Case Settled?

Everything I have covered in this article is designed to assist you in trying to resolve your dispute.  The more you prepare, the more likely you are to reach a settlement.  Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise.  If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you.  If you are an injured party, you may likely feel that no amount of money can really make the past go away.  Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation.  The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value.  Jurors are strangers to your case and may have differing beliefs and attitudes toward you.  Jurors are often suspicious of people who bring lawsuits and of their attorneys.  They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money.  This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify.  On the other hand, juries tends to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished.  Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias.  Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.

Punitive Damage in Federal Court

Punitive damages are not available in every case. For example, punitive damages are not available against municipalities, counties, or other governmental entities unless expressly authorized by statute. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981).  Punitive damages may, however, be available against governmental employees acting in their individual capacities. See Monell v. New York City Dept. of Soc. Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254. In diversity cases, look to state law for an appropriate instruction.

Similarly, punitive damages claims arising under state law are subject to state law standards for recovery. See, e.g., Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1056 (9th Cir. 1997). (more…)

Objections to Written Discovery

OBJECTIONS  

“Repeating the familiar phrase that each request is ‘vague, ambiguous, overly broad, unduly burdensome and oppressive, not relevant nor calculated to lead to the discovery of admissible evidence and, further, seeks material protected by the attorney/client or other privilege and the work product  doctrine’ is insufficient. . . . The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal discovery rules.”  Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001) (citing Pleasants v. Allbaugh, 2002 U.S.Dist. Lexis 8941 (D. D.C. 2002); G-69 v. Degnan, 130 F.R.D. 326 (D. N.J. 1990); Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982)). (more…)

In Nevada, to be eligible for the remedy of lost profits, one must prove:

  1. Evidence of lost profits must not be speculative; and
  2. Evidence must show with reasonable certainty both the occurrence and extent of lost profits.

Dobbs Law of Remedies at § 12.62(2); El Ranco, Inc. v. First Nat’l Bank, 406 F.2d 1205 (9th Cir. 1968) (The existence and extent of lost profits is one of evidentiary weight instead of admissibility); Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980); Eaton v, J. H., Inc., 94 Nev. 446, 450, 581 P.2d 14, 17 (1978).  Houston Exploration Inc. v. Meredith, 728 P.2d 437 (1986) (expert testimony regarding the lost profits of a new venture must be allowed to go to the jury, which will determine the weight to be assigned such testimony); Hughes v. Hobson, 92 Nev. 683, 558 P.2d 543 (1976) (damages based on the prospective profits of a new business venture are too uncertain and speculative to form a basis for recovery).

Business Owner’s Toolbox

How to Start Your Business

Business Owner’s Toolbox

So, You Want to Own Your Own Business in Nevada?
A Primer on Types of Business Formations In Nevada
Three Popular Nevada Business Entities and How to Structure Them
Thinking of Opening a Nevada Business?  Here Are Some Things You Should Know About Licensing
Why You Should Never Refer to Someone as Your Partner
Nevada Partnership Formation and Law
Joint Venture versus Partnership: What is the Difference? (COMING SOON) (more…)

confirm award

Motion to confirm arbitration award

Once a party has prevailed in arbitration, they may wish to enforce the award.  The prevailing party must file a motion with the appropriate court (either federal or state court depending on the circumstances). The Federal Arbitration Act (“FAA”) (9 U.S.C. § 9) or the Nevada Uniform Arbitration Act (NRS 38.239) will determine the appropriate court where the motion to confirm should be filed.

The court must confirm an award unless it finds grounds to vacate, modify, or correct it.   9 U.S.C. § 9;  NRS 38.244.

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NEVADA CONTRACT LAW

I.     CONTRACT REQUIREMENTS

     A.     Consideration

                Failure of Consideration

When a written contract is shown to be a sham, neither party is under an obligation to the other. See Schieve v. Warren, 87 Nev. 42, 482 P.2d 301 (1971).

Benefit conferred or detriment incurred in past is not adequate consideration for present bargain. See Clark County v. Bonanza No. 1, 96 Nev. 643, 615 P.2d 939 (1980). (more…)

Nevada Revised Statutes: CHAPTER 38 – MEDIATION AND ARBITRATION

CHAPTER 38 – MEDIATION AND ARBITRATION

UNIFORM ARBITRATION ACT OF 2000

NRS 38.206             Short title.
NRS 38.207             Definitions.
NRS 38.208             “Arbitral organization” defined.
NRS 38.209             “Arbitrator” defined.
NRS 38.211             “Court” defined.
NRS 38.212             “Knowledge” defined.
NRS 38.213             “Record” defined.
NRS 38.214             Notice.
NRS 38.216             Applicability.
NRS 38.217             Waiver of requirements or variance of effects of requirements; exceptions.

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NRS 38.259  Certain written findings concerning arbitration required; admissibility of such findings at trial anew before jury; instructions to jury.

      1.  If an action is submitted to arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, the arbitrator or panel of arbitrators shall, in addition to any other written findings of fact or conclusions of law, make written findings in accordance with this subsection concerning each cause of action. The written findings must be in substantially the following form, with “panel of arbitrators” being substituted for “arbitrator” when appropriate:

        Based upon the evidence presented at the arbitration hearing concerning the cause of action for ……………., the arbitrator finds in favor of …………….(name of the party) and …………….(“awards damages in the amount of $…………….” or “does not award any damages on that cause of action”).

       2.  If an action is submitted to arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, and, after arbitration, a party requests a trial anew before a jury:

      (a) The written findings made by the arbitrator or the panel of arbitrators pursuant to subsection 1 must be admitted at trial. The testimony of the arbitrator or arbitrators, whenever taken, must not be admitted at trial, and the arbitrator or arbitrators must not be deposed or called to testify concerning the arbitration. Any other evidence concerning the arbitration must not be admitted at trial, unless the admission of such evidence is required by the Constitution of this State or the Constitution of the United States.

      (b) The court shall give the following instruction to the jury concerning the action, substituting “panel of arbitrators” for “arbitrator” when appropriate:

        During the course of this trial, certain evidence was admitted concerning the findings of an arbitrator. On the cause of action for ……………., the arbitrator found in favor of …………….(name of the party) and …………….(“awarded damages in the amount of $…………….” or “did not award any damages on that cause of action”). The findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.

       3.  The court shall give a separate instruction pursuant to paragraph (b) of subsection 2 for each such cause of action that is tried before a jury.

      (Added to NRS by 1999, 851)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.258  Use of other alternative methods of resolving disputes; adoption of rules by Supreme Court.

      1.  The Supreme Court may authorize the use of settlement conferences and other alternative methods of resolving disputes, including, without limitation, mediation and a short trial, that are available in the county in which a district court is located:

      (a) In lieu of submitting an action to nonbinding arbitration pursuant to NRS 38.250; or

      (b) During or following such nonbinding arbitration if the parties agree that the use of any such alternative methods of resolving disputes would assist in the resolution of the dispute.

      2.  If the Supreme Court authorizes the use of an alternative method of resolving disputes pursuant to subsection 1, the Supreme Court shall adopt rules and procedures to govern the use of any such method.

      3.  As used in this section, “short trial” has the meaning ascribed to it in NRS 38.250.

      (Added to NRS by 1991, 1344; A 1999, 1380; 2005, 393)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.255  Guidelines for establishment of programs for arbitration.

      1.  The rules adopted by the Supreme Court pursuant to NRS 38.253 to provide guidelines for the establishment by a district court of a program must include provisions for a:

      (a) Mandatory program for the arbitration of civil actions pursuant to NRS 38.250.

      (b) Voluntary program for the arbitration of civil actions if the cause of action arises in the State of Nevada and the amount in issue exceeds $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs.

      (c) Voluntary program for the use of binding arbitration in all civil actions.

      2.  The rules must provide that the district court of any judicial district whose population is 100,000 or more:

      (a) Shall establish programs pursuant to paragraphs (a), (b) and (c) of subsection 1.

      (b) May set fees and charge parties for arbitration if the amount in issue exceeds $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs.

Ê The rules may provide for similar programs for the other judicial districts.

      3.  The rules must exclude the following from any program of mandatory arbitration:

      (a) Actions in which the amount in issue, excluding attorney’s fees, interest and court costs, is more than $50,000 or less than the maximum jurisdictional amounts specified in NRS 4.370 and 73.010;

      (b) Class actions;

      (c) Actions in equity;

      (d) Actions concerning the title to real estate;

      (e) Probate actions;

      (f) Appeals from courts of limited jurisdiction;

      (g) Actions for declaratory relief;

      (h) Actions involving divorce or problems of domestic relations;

      (i) Actions brought for relief based on any extraordinary writs;

      (j) Actions for the judicial review of an administrative decision;

      (k) Actions in which the parties, pursuant to a written agreement executed before the accrual of the cause of action or pursuant to rules adopted by the Supreme Court, have submitted the controversy to arbitration or any other alternative method for resolving a dispute;

      (l) Actions that present unusual circumstances that constitute good cause for removal from the program;

      (m) Actions in which any of the parties is incarcerated; and

      (n) Actions submitted to mediation pursuant to rules adopted by the Supreme Court.

      4.  The rules must include:

      (a) Provisions for the payment of fees to an arbitrator who is appointed to hear a case pursuant to the rules. The rules must provide that an arbitrator must be compensated at a rate of $100 per hour, to a maximum of $1,000 per case, unless otherwise authorized by the arbitration commissioner for good cause shown.

      (b) Guidelines for the award of attorney’s fees and maximum limitations on the costs to the parties of the arbitration.

      (c) Disincentives to appeal.

      (d) Provisions for trial upon the exercise by either party of the party’s right to a trial anew after the arbitration.

      (Added to NRS by 1983, 1232; A 1991, 1344; 1995, 2537; 2001, 542; 2005, 392; 2015, 2760)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.253  Adoption of rules by Supreme Court; training; administration by district courts; fees; arbitrator deemed employee of court for certain purposes.

      1.  The Supreme Court shall adopt rules to provide for the establishment of a program of arbitration pursuant to NRS 38.250.

      2.  The Supreme Court, in association with the State Bar of Nevada or other organizations, shall provide training in arbitration for attorneys and nonattorneys.

      3.  The district courts in each judicial district shall administer the program in their respective districts in accordance with the rules adopted by Supreme Court.

      4.  The Supreme Court may:

      (a) Charge each person who applies for training as an arbitrator an application fee.

      (b) Charge a fee to cover the cost of the training programs.

      5.  For the purposes of NRS 41.0305 to 41.039, inclusive, a person serving as an arbitrator shall be deemed an employee of the court while in the performance of the person’s duties under the program.

      (Added to NRS by 1991, 1343; A 1993, 1024)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.250  Nonbinding arbitration of certain civil actions filed in district court required; nonbinding arbitration of certain civil actions filed in justice court authorized; effect of certain agreements by parties to use other alternative methods of resolving disputes.

      1.  Except as otherwise provided in NRS 38.310:

      (a) All civil actions filed in district court for damages, if the cause of action arises in the State of Nevada and the amount in issue does not exceed $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs, must be submitted to nonbinding arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, unless the parties have agreed or are otherwise required to submit the action to an alternative method of resolving disputes established by the Supreme Court pursuant to NRS 38.258, including, without limitation, a settlement conference, mediation or a short trial.

      (b) A civil action for damages filed in justice court may be submitted to binding arbitration or to an alternative method of resolving disputes, including, without limitation, a settlement conference or mediation, if the parties agree to the submission.

      2.  An agreement entered into pursuant to this section must be:

      (a) Entered into at the time of the dispute and not be a part of any previous agreement between the parties;

      (b) In writing; and

      (c) Entered into knowingly and voluntarily.

Ê An agreement entered into pursuant to this section that does not comply with the requirements set forth in this subsection is void.

      3.  As used in this section, “short trial” means a trial that is conducted, with the consent of the parties to the action, in accordance with procedures designed to limit the length of the trial, including, without limitation, restrictions on the amount of discovery requested by each party, the use of a jury composed of not more than eight persons and a specified limit on the amount of time each party may use to present the party’s case.

      (Added to NRS by 1991, 1343; A 1993, 556, 1024; 1995, 1419, 2537, 2538; 1999, 852, 1379; 2003, 851; 2005, 391)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.248  Uniformity of application and construction.  In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

      (Added to NRS by 2001, 1283)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.247  Appeals.

      1.  An appeal may be taken from:

      (a) An order denying a motion to compel arbitration;

      (b) An order granting a motion to stay arbitration;

      (c) An order confirming or denying confirmation of an award;

      (d) An order modifying or correcting an award;

      (e) An order vacating an award without directing a rehearing; or

      (f) A final judgment entered pursuant to NRS 38.206 to 38.248, inclusive.

      2.  An appeal under this section must be taken as from an order or a judgment in a civil action.

      (Added to NRS by 2001, 1283)