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The Arbitration Toolbox

The Arbitration Toolbox

I am a Nevada arbitrator 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…)

So, You Want to Own Your Own Business in Nevada? The Nevada Business Law Blog's Primer on Nevada Business Law

So, You Want to Own Your Own Business in Nevada? The Nevada Business Law Blog’s Primer on Nevada Business Law

A Review of Nevada’s Corporate Law

 

This article explores the advantages and disadvantages of various types of business entities in Nevada.  Generally, the main advantage of a corporate entity is to shield its owners from placing their personal assets in jeopardy for the obligations of the business.  If you are unsure which entity is right for you, call today 702.667.4828 for a consultation with one of our business attorneys.

(more…)

The Litigation Toolbox

The Litigation Toolbox

I am a Nevada business litigator 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…)

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.

(more…)

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.

(more…)

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)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.246  Venue.  A motion pursuant to NRS 38.218 must be made in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which it was held. Otherwise, the motion may be made in the court of any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this State, in the court of any county in this State. All subsequent motions must be made in the court hearing the initial motion unless the court otherwise directs.

      (Added to NRS by 2001, 1283)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.244  Jurisdiction.

      1.  A court of this state having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate.

      2.  An agreement to arbitrate providing for arbitration in this state confers exclusive jurisdiction on the court to enter judgment on an award under NRS 38.206 to 38.248, inclusive.

      (Added to NRS by 2001, 1283)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.243  Judgment on award; attorney’s fees and litigation expenses.

      1.  Upon granting an order confirming, vacating without directing a rehearing, modifying or correcting an award, the court shall enter a judgment in conformity therewith. The judgment may be recorded, docketed and enforced as any other judgment in a civil action.

      2.  A court may allow reasonable costs of the motion and subsequent judicial proceedings.

      3.  On application of a prevailing party to a contested judicial proceeding under NRS 38.239, 38.241 or 38.242, the court may add reasonable attorney’s fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying or correcting an award.

      (Added to NRS by 2001, 1282)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.242  Modification or correction of award.

      1.  Upon motion made within 90 days after the movant receives notice of the award pursuant to NRS 38.236 or within 90 days after the movant receives notice of a modified or corrected award pursuant to NRS 38.237, the court shall modify or correct the award if:

      (a) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing or property referred to in the award;

      (b) The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or

      (c) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.

      2.  If a motion made under subsection 1 is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.

      3.  A motion to modify or correct an award pursuant to this section may be joined with a motion to vacate the award.

      (Added to NRS by 2001, 1282)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.241  Vacating award.

      1.  Upon motion to the court by a party to an arbitral proceeding, the court shall vacate an award made in the arbitral proceeding if:

      (a) The award was procured by corruption, fraud or other undue means;

      (b) There was:

             (1) Evident partiality by an arbitrator appointed as a neutral arbitrator;

             (2) Corruption by an arbitrator; or

             (3) Misconduct by an arbitrator prejudicing the rights of a party to the arbitral proceeding;

      (c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to NRS 38.231, so as to prejudice substantially the rights of a party to the arbitral proceeding;

      (d) An arbitrator exceeded his or her powers;

      (e) There was no agreement to arbitrate, unless the movant participated in the arbitral proceeding without raising the objection under subsection 3 of NRS 38.231 not later than the beginning of the arbitral hearing; or

      (f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in NRS 38.223 so as to prejudice substantially the rights of a party to the arbitral proceeding.

      2.  A motion under this section must be made within 90 days after the movant receives notice of the award pursuant to NRS 38.236 or within 90 days after the movant receives notice of a modified or corrected award pursuant to NRS 38.237, unless the movant alleges that the award was procured by evident partiality, corruption, fraud or other undue means, in which case the motion must be made within 90 days after the ground is known or by the exercise of reasonable care would have been known by the movant.

      3.  If the court vacates an award on a ground other than that set forth in paragraph (e) of subsection 1, it may order a rehearing. If the award is vacated on a ground stated in paragraph (a) or (b) of subsection 1, the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in paragraph (c), (d) or (f) of subsection 1, the rehearing may be before the arbitrator who made the award or the arbitrator’s successor. The arbitrator must render the decision in the rehearing within the same time as that provided in subsection 2 of NRS 38.236 for an award.

      4.  If the court denies a motion to vacate an award, it shall confirm the award unless a motion to modify or correct the award is pending.

      (Added to NRS by 2001, 1281; A 2015, 1980)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.239  Confirmation of award.  After a party to an arbitral proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to NRS 38.237 or 38.242 or is vacated pursuant to NRS 38.241.

      (Added to NRS by 2001, 1281)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.238  Remedies; fees and expenses of arbitration proceeding.

      1.  An arbitrator may award reasonable attorney’s fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitral proceeding.

      2.  As to all remedies other than those authorized by subsection 1, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitral proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under NRS 38.239 or for vacating an award under NRS 38.241.

      3.  An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.

      (Added to NRS by 2001, 1281)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.237  Change of award by arbitrator.

      1.  On motion to an arbitrator by a party to an arbitral proceeding, the arbitrator may modify or correct an award:

      (a) Upon a ground stated in paragraph (a) or (c) of subsection 1 of NRS 38.242;

      (b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitral proceeding; or

      (c) To clarify the award.

      2.  A motion under subsection 1 must be made and notice given to all parties within 20 days after the movant receives notice of the award.

      3.  A party to the arbitral proceeding must give notice of any objection to the motion within 10 days after receipt of the notice.

      4.  If a motion to the court is pending under NRS 38.239, 38.241 or 38.242, the court may submit the claim to the arbitrator to consider whether to modify or correct the award:

      (a) Upon a ground stated in paragraph (a) or (c) of subsection 1 of NRS 38.242;

      (b) Because the arbitrator has not made a final and definite award upon a claim submitted by the parties to the arbitral proceeding; or

      (c) To clarify the award.

      5.  An award modified or corrected pursuant to this section is subject to subsection 1 of NRS 38.236 and to NRS 38.239, 38.241 and 38.242.

      (Added to NRS by 2001, 1281)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.236  Award.

      1.  An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by an arbitrator who concurs with the award. The arbitrator or the arbitral organization shall give notice of the award, including a copy of the award, to each party to the arbitral proceeding.

      2.  An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitral proceeding may agree in a record to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

      (Added to NRS by 2001, 1280)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.234  Judicial enforcement of preaward ruling by arbitrator.If an arbitrator makes a preaward ruling in favor of a party to an arbitral proceeding, the party may request the arbitrator to incorporate the ruling into an award under NRS 38.236. A prevailing party may make a motion to the court for an expedited order to confirm the award under NRS 38.239, in which case the court shall summarily decide the motion. The court shall issue an order to confirm the award unless the court vacates, modifies or corrects the award under NRS 38.241 or 38.242.

      (Added to NRS by 2001, 1280)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.233  Witnesses; subpoenas; depositions; discovery.

      1.  An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitral proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

      2.  To make the proceedings fair, expeditious and cost effective, upon request of a party to or a witness in an arbitral proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken.

      3.  An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitral proceeding and other affected persons and the desirability of making the proceeding fair, expeditious and cost effective.

      4.  If an arbitrator permits discovery under subsection 3, the arbitrator may order a party to the arbitral proceeding to comply with the arbitrator’s orders related to discovery, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a proceeding for discovery, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this State.

      5.  An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this State.

      6.  All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition or a proceeding for discovery as a witness apply to an arbitral proceeding as if the controversy were the subject of a civil action in this State.

      7.  The court may enforce a subpoena or order related to discovery for the attendance of a witness within this State and for the production of records and other evidence issued by an arbitrator in connection with an arbitral proceeding in another state upon conditions determined by the court so as to make the arbitral proceeding fair, expeditious and cost effective. A subpoena or order related to discovery issued by an arbitrator in another state must be served in the manner provided by rule of court for service of subpoenas in a civil action in this State and, upon motion to the court by a party to the arbitral proceeding or the arbitrator, enforced in the manner provided by rule of court for enforcement of subpoenas in a civil action in this State.

      (Added to NRS by 2001, 1279)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.232  Representation by lawyer.  A party to an arbitral proceeding may be represented by a lawyer.

      (Added to NRS by 2001, 1279)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.231  Arbitration process.

      1.  An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitral proceeding before the hearing and, among other matters, determine the admissibility, relevance, materiality and weight of any evidence.

      2.  An arbitrator may decide a request for summary disposition of a claim or particular issue:

      (a) If all interested parties agree; or

      (b) Upon request of one party to the arbitral proceeding if that party gives notice to all other parties to the proceeding, and the other parties have a reasonable opportunity to respond.

      3.  If an arbitrator orders a hearing, the arbitrator shall set a time and place and give notice of the hearing not less than 5 days before the hearing begins. Unless a party to the arbitral proceeding makes an objection to lack or insufficiency of notice not later than the beginning of the hearing, the party’s appearance at the hearing waives the objection. Upon request of a party to the arbitral proceeding and for good cause shown, or upon the arbitrator’s own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitral proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitral proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.

      4.  At a hearing held under subsection 3, a party to the arbitral proceeding has a right to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.

      5.  If an arbitrator ceases or is unable to act during an arbitral proceeding, a replacement arbitrator must be appointed in accordance with NRS 38.226 to continue the proceeding and to resolve the controversy.

      (Added to NRS by 2001, 1279)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.229  Immunity of arbitrator; competency to testify; attorney’s fees and costs.

      1.  An arbitrator or an arbitral organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this State acting in a judicial capacity.

      2.  The immunity afforded by this section supplements any immunity under other law.

      3.  The failure of an arbitrator to make a disclosure required by NRS 38.227 does not cause any loss of immunity under this section.

      4.  In a judicial, administrative or similar proceeding, an arbitrator or representative of an arbitral organization is not competent to testify, and may not be required to produce records as to any statement, conduct, decision or ruling occurring during the arbitral proceeding, to the same extent as a judge of a court of this State acting in a judicial capacity. This subsection does not apply:

      (a) To the extent necessary to determine the claim of an arbitrator, arbitral organization or representative of the arbitral organization against a party to the arbitral proceeding; or

      (b) To a hearing on a motion to vacate an award under paragraph (a) or (b) of subsection 1 of NRS 38.241 if the movant establishes prima facie that a ground for vacating the award exists.

      5.  If a person commences a civil action against an arbitrator, arbitral organization or representative of an arbitral organization arising from the services of the arbitrator, organization or representative or if a person seeks to compel an arbitrator or a representative of an arbitral organization to testify or produce records in violation of subsection 4, and the court decides that the arbitrator, arbitral organization or representative is immune from civil liability or that the arbitrator or representative is not competent to testify, the court shall award to the arbitrator, organization or representative reasonable attorney’s fees and other reasonable expenses of litigation.

      (Added to NRS by 2001, 1278)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.228  Action by majority.If there are two or more arbitrators, the powers of an arbitrator must be exercised by a majority of the arbitrators, but all of them shall conduct the hearing under subsection 3 of NRS 38.231.

      (Added to NRS by 2001, 1278)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.227  Disclosure of known facts likely to affect impartiality of arbitrator; objection of party based on disclosure; effect of failure to make required disclosure.

      1.  Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitral proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the proceeding, including:

      (a) A financial or personal interest in the outcome of the arbitral proceeding; and

      (b) An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitral proceeding, their counsel or representatives, a witness or another arbitrator.

      2.  An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitral proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment which a reasonable person would consider likely to affect the impartiality of the arbitrator.

      3.  If an arbitrator discloses a fact required by subsection 1 or 2 to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under paragraph (b) of subsection 1 of NRS 38.241 for vacating an award made by the arbitrator.

      4.  Except as otherwise provided in this subsection, if the arbitrator did not disclose a fact as required by subsection 1 or 2, upon timely objection by a party and a determination by the court under paragraph (b) of subsection 1 of NRS 38.241 that the nondisclosed fact is one that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitral proceeding, the court shall:

      (a) Vacate an award made before the objecting party discovered such fact; or

      (b) If an award has not been made before discovery of such fact, remove the arbitrator from the arbitral proceeding.

Ê This subsection does not apply to an arbitral proceeding conducted or administered by a self-regulatory organization, as defined by the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(26), the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., and any regulations adopted pursuant thereto.

      5.  An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct and material interest in the outcome of the arbitral proceeding or a known, existing and substantial relationship with a party is presumed to act with evident partiality for the purposes of paragraph (b) of subsection 1 of NRS 38.241.

      6.  If the parties to an arbitral proceeding expressly agree to the procedures of an arbitral organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under paragraph (b) of subsection 1 of NRS 38.241.

      (Added to NRS by 2001, 1277; A 2015, 1979)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.226  Appointment of arbitrator; service as neutral arbitrator.

      1.  If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitral proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.

      2.  An individual who has a known, direct and material interest in the outcome of the arbitral proceeding or a known, existing and substantial relationship with a party may not serve as an arbitrator required by an agreement to be neutral.

      (Added to NRS by 2001, 1277)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.224  Consolidation of separate arbitral proceedings.

      1.  Except as otherwise provided in subsection 3, upon motion of a party to an agreement to arbitrate or to an arbitral proceeding, the court may order consolidation of separate arbitral proceedings as to all or some of the claims if:

      (a) There are separate agreements to arbitrate or separate arbitral proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitral proceeding with a third person;

      (b) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;

      (c) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitral proceedings; and

      (d) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.

      2.  The court may order consolidation of separate arbitral proceedings as to some claims and allow other claims to be resolved in separate arbitral proceedings.

      3.  The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

      4.  Except as otherwise provided in this subsection, an arbitrator may not consolidate separate arbitral proceedings or other claims unless all parties expressly agree to the consolidation. This subsection does not apply to an arbitral proceeding conducted or administered by a self-regulatory organization, as defined by the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(26), the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., and any regulations adopted pursuant thereto.

      (Added to NRS by 2001, 1277; A 2015, 1978)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.223  Initiation of arbitration.

      1.  A person initiates an arbitral proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.

      2.  Unless a person objects for lack or insufficiency of notice under subsection 3 of NRS 38.231 not later than the beginning of the arbitration hearing, by appearing at the hearing the person waives any objection to lack of or insufficiency of notice.

      (Added to NRS by 2001, 1277)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.222  Provisional remedies.

      1.  Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitral proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitral proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

      2.  After an arbitrator is appointed and is authorized and able to act:

      (a) The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitral proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action; and

      (b) A party to an arbitral proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

      3.  A party does not waive a right of arbitration by making a motion under subsection 1 or 2.

      (Added to NRS by 2001, 1276)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.221  Motion to compel or stay arbitration.

      1.  On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

      (a) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

      (b) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

      2.  On motion of a person alleging that an arbitral proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

      3.  If the court finds that there is no enforceable agreement, it may not, pursuant to subsection 1 or 2, order the parties to arbitrate.

      4.  The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

      5.  If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in NRS 38.246.

      6.  If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

      7.  If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

      (Added to NRS by 2001, 1276)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.219  Validity of agreement to arbitrate.

      1.  An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except as otherwise provided in NRS 597.995 or upon a ground that exists at law or in equity for the revocation of a contract.

      2.  The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

      3.  An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

      4.  If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitral proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

      (Added to NRS by 2001, 1275; A 2013, 568)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.218  Application for judicial relief; service of notice of initial motion.

      1.  Except as otherwise provided in NRS 38.247, an application for judicial relief under NRS 38.206 to 38.248, inclusive, must be made by motion to the court and heard in the manner provided by rule of court for making and hearing motions.

      2.  Unless a civil action involving the agreement to arbitrate is pending, notice of an initial motion to the court under NRS 38.206 to 38.248, inclusive, must be served in the manner provided by rule of court for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by rule of court for serving motions in pending cases.

      (Added to NRS by 2001, 1275)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.217  Waiver of requirements or variance of effects of requirements; exceptions.

      1.  Except as otherwise provided in subsections 2 and 3, a party to an agreement to arbitrate or to an arbitral proceeding may waive, or the parties may vary the effect of, the requirements of NRS 38.206 to 38.248, inclusive, to the extent permitted by law.

      2.  Before a controversy arises that is subject to an agreement to arbitrate, a party to the agreement may not:

      (a) Waive or agree to vary the effect of the requirements of subsection 1 of NRS 38.218, subsection 1 of NRS 38.219, NRS 38.222, subsection 1 or 2 of NRS 38.233, NRS 38.244 or 38.247;

      (b) Agree to unreasonably restrict the right under NRS 38.223 to notice of the initiation of an arbitral proceeding;

      (c) Agree to unreasonably restrict the right under NRS 38.227 to disclosure of any facts by a neutral arbitrator; or

      (d) Waive the right under NRS 38.232 of a party to an agreement to arbitrate to be represented by a lawyer at any proceeding or hearing under NRS 38.206 to 38.248, inclusive, but an employer and a labor organization may waive the right to representation by a lawyer in a labor arbitration.

      3.  A party to an agreement to arbitrate or arbitral proceeding may not waive, or the parties may not vary the effect of, the requirements of this section or subsection 1 or 3 of NRS 38.216, NRS 38.221, 38.229, 38.234, subsection 3 or 4 of NRS 38.237, NRS 38.239, 38.241, 38.242, subsection 1 or 2 of NRS 38.243, NRS 38.248 or 38.330.

      (Added to NRS by 2001, 1275; A 2003, 35, 42)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.216  Applicability.

      1.  NRS 38.206 to 38.248, inclusive, govern an agreement to arbitrate made on or after October 1, 2001.

      2.  NRS 38.206 to 38.248, inclusive, govern an agreement to arbitrate made before October 1, 2001, if all the parties to the agreement or to the arbitral proceeding so agree in a record.

      3.  On or after October 1, 2003, NRS 38.206 to 38.248, inclusive, govern an agreement to arbitrate whenever made.

      (Added to NRS by 2001, 1275)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.214  Notice.

      1.  Except as otherwise provided in NRS 38.206 to 38.248, inclusive, a person gives notice to another person by taking action that is reasonably necessary to inform the other person in ordinary course, whether or not the other person acquires knowledge of the notice.

      2.  A person has notice if the person has knowledge of the notice or has received notice.

      3.  A person receives notice when it comes to the person’s attention or the notice is delivered at the person’s place of residence or place of business, or at another location held out by the person as a place of delivery of such communications.

      (Added to NRS by 2001, 1274)

UNIFORM ARBITRATION ACT OF 2000

 NRS 38.211  “Court” defined.“Court” means the district court.

      (Added to NRS by 2001, 1274)

 NRS 38.212  “Knowledge” defined.  “Knowledge” means actual knowledge.

      (Added to NRS by 2001, 1274)

 NRS 38.213  “Record” defined.“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

      (Added to NRS by 2001, 1274)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.209  “Arbitrator” defined.“Arbitrator” means an individual appointed to render an award, alone or with others, in a controversy that is subject to an agreement to arbitrate.

      (Added to NRS by 2001, 1274)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.208  “Arbitral organization” defined.  “Arbitral organization” means an association, agency, board, commission or other entity that is neutral and initiates, sponsors or administers an arbitral proceeding or is involved in the appointment of an arbitrator.

      (Added to NRS by 2001, 1274)

UNIFORM ARBITRATION ACT OF 2000

NRS 38.207  Definitions.  As used in NRS 38.206 to 38.248, inclusive, the words and terms defined in NRS 38.208 to 38.213, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 2001, 1274)

UNIFORM ARBITRATION ACT OF 2000

     NRS 38.206  Short title.  NRS 38.206 to 38.248, inclusive, may be cited as the Uniform Arbitration Act of 2000.

      (Added to NRS by 2001, 1274)

Compel Arbitration

Sample Form Motion to Compel Arbitration

POINTS AND AUTHORITIES

This motion seeks an order from this honorable Court compelling arbitration of all matters between ____________________.  The Parties entered into a written agreement on _____________ requiring arbitration of their disputes.  _________ asks the Court to compel compliance  with that agreement pursuant to the Federal Arbitration Act, as well as Nevada’s Uniform Arbitration Act.

 

 

I.     Introduction and Factual Background

[INSERT]

II.     Argument

     A.     Standard For Motion To Compel Arbitration

1.     The Standard Under the Federal Arbitration Act (more…)

Compel Arbitration

Motion to Compel Arbitration

This Article is designed to provide a litigant with the basis in law to file a motion to compel arbitration in Federal Court where a party to an arbitration agreement has refused to honor the agreement to arbitrate or has filed a lawsuit in court instead of initiating arbitration.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), governs the enforcement of arbitration agreements.  9 U.S.C. §§ 1-2; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 398 U.S. 395, 402 (1967).  The FAA established a national public policy favoring arbitration.  AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011)).  An arbitration agreement is enforceable under the FAA if it is in writing, relates to a commercial or maritime transaction, and manifests and agreement between the parties to arbitrate a dispute. 9 U.S.C § 1.  Contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” are not covered by the FAA.  Id. (more…)

For a PDF version of this post, click here

 

 

 

Comparison of AAA and JAMS Arbitration Rules

IssueAAAJAMS
Number of ArbitratorsAs designated in the agreement between the parties, or if silent:
-One arbitrator for amount in controversy under $1 Million in controversy (Rules, R-16)
-Three arbitrators for more than $1 Million in controversy (L-2)
-But see Streamlined Three Arbitrator Panel Option rules
As designated in the agreement between the parties, or if silent, one arbitrator (JAMS Rule 7).
ConfidentialityConfidentiality of the proceedings is not required of the parties unless agreed to by contract. Confidentiality of the proceedings is not required of the parties unless agreed to by contract. Rule 26 provides that both JAMS and the arbitrator must maintain the confidentiality of the proceedings and the award.
Production of DocumentsCommercial Rules, R-22
b) Documents. The arbitrator may, on application of a party or on the arbitrator’s own initiative: i. require the parties to exchange documents in their possession or custody on which they intend to rely; ii. require the parties to update their exchanges of the documents on which they intend to rely as such documents become known to them; iii. require the parties, in response to reasonable document requests, to make available to the other party documents, in the responding party’s possession or custody, not otherwise readily available to the party seeking the documents, reasonably believed by the party seeking the documents to exist and to be relevant and material to the outcome of disputed issues; and iv. require the parties, when documents to be exchanged or produced are maintained in electronic form, to make such documents available in the form most convenient and economical for the party in possession of such documents, unless the arbitrator determines that there is good cause for requiring the documents to be produced in a different form. The parties should attempt to agree in advance upon, and the arbitrator may determine, reasonable search parameters to balance the need for production of electronically stored documents relevant and material to the outcome of disputed issues against the cost of locating and producing them.
JAMS Recommended Arbitration Discovery Protocols, at 3
“Document requests shall be limited to documents directly relevant to significant issues in the case or to the case’s outcome, shall be restricted in terms of timeframe, subject matter and persons or entities to which the requests pertain, and shall not include broad phraseology such as ‘all documents directly or indirectly related to.’”

InterrogatoriesNot mentioned in the rules, but the arbitrator has discretion to allow them. Commercial Rules, R-22(a), which provides:
“Authority of arbitrator. The arbitrator shall manage any necessary exchange of information among the parties with a view to achieving an efficient and economical resolution of the dispute, while at the same time promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses”
Not mentioned in JAMS rules and Procedures, but the arbitrator has broad discretion to allow them under the JAMS Recommended Arbitration Discovery Protocols and appropriate rules.
DepositionsCommercial Rules are silent, but the arbitrator has discretion to allow them under R-22(a) for good cause shown. Complex Rules, L-3 allows for them in “exceptional cases” and “upon good cause shown and consistent with the expedited nature of arbitration”.Rule 17(b) allows each party to take one deposition of an opposing party or someone under the control of the opposing party. Arbitrator may order additional depositions.

The Streamlined Rules do not allow depositions unless there is a reasonable need, no availability of other options to obtain the information, and after weighing the burden of the request.

If the arbitrator determines to allow multiple depositions, the JAMS Discovery protocols indicate “he/she may attempt to solicit agreement at the first pre-hearing conference on language such as the following:
Each side may take __ discovery depositions. Each side’s depositions are to consume no more than a total of __ hours. There are to be no speaking objections at the depositions, except to preserve privilege. The total period for the taking of depositions shall not exceed __ weeks.”
SubpoenasR-34 allows the issuance of subpoenas “upon the request of any party or independently.”Rule 21 allows the arbitrator to issue a subpoena for the attendance of witnesses or for the production of documents either before or at the hearing.
Dispositive Motions (MSJ)Dispositive motions are allowed by R-33, Construction Rule 32, and Employment Rule 27. The arbitrator has the discretion whether to consider the motion.Dispositive motions are allowed by Rule 18.
Interim/Injunctive ReliefR-37 allows the arbitrator to issue “whatever interim measures he or she deems necessary, including injunctive relief and measures for the protection or conservation of property and disposition of perishable goods.” The arbitrator may require a security or bond.

R-38 allows the appointment of an emergency arbitrator with power to issue interim relief if an arbitrator has not been chosen appointed, where emergency relief is required.
Rule 24 allows the arbitrator to issue “whatever interim measures are deemed necessary, including injunctive relief and measures for the protection or conservation of property and disposition of disposable goods. Such interim measures may take the form of an interim or Partial Final Award, and the Arbitrator may require security for the costs of such measures. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.”

Rule 2 allows for the appointment of an emergency arbitrator to order interim measures where no arbitrator has been selected and there is an emergency
Type of AwardReasoned awards are not required unless the parties agree to it in writing before the appointment of the arbitrator. R-46. It must be rendered within 30 calendar days from the close of the hearing. R-45.A reasoned award is the default under Rule 24 unless the parties agree otherwise. It must be rendered within 30 calendar days from the close of the hearing. Rule 24.
Attorney’s Fees AwardR-47 allows for an award of attorney’s fees where requested by the parties or authorized by law/agreement.Rule 24 allows for an award of attorney’s fees where authorized by law or the arbitration agreement.
This article compares American Arbitration Association Rules with JAMS Rules on several key points, including discovery matters.

NEVADA CAUSES OF ACTION, ELEMENTS OF CLAIMS, REMEDIES, THEORIES OF LIABILITY, AND DEFENSES

Nevada Causes of Action, Elements of Claims

These posts do not constitute legal counsel.  No guarantee is given that the law is as stated in these posts, as the law is constantly changing.  This is meant to be a resource to allow you to become familiar with Nevada causes of action. Before relying on any post below, you should conduct your own research or seek competent counsel.

A

Abuse of Process
Abuse/Exploitation of Elderly
Accord and Satisfaction
Accounting, a Remedy
Agent, Negligence of
Aiding and Abetting
Aiding and Abetting Another’s Breach of a Fiduciary Duty
Alter Ego; Piercing the Corporate Veil
Anticipatory Repudiation
Appointment Of A Receiver
Appropriation of the Name or Likeness of Another; Invasion of Privacy
Assault
Attorney Fees, Pleading as Special Damages (more…)

Drafting an enforceable arbitration clause in Nevada presents challenges

Drafting an enforceable arbitration clause in Nevada presents challenges

Are you certain you have and enforceable arbitration agreement in Nevada?  In this 2016 post, we discussed Nevada Revised Statute 597.995‘s peculiarly-worded requirement that an arbitration clause or an agreement to arbitrate is void and unenforceable unless it contains a “specific authorization” that the parties have “affirmatively agreed” to the arbitration provision.  The Nevada Supreme Court recently decided the case of Fat Hat, LLC v. Diterlizzi and NRS 597.995’s requirement for an affirmative agreement played a central role in the matter.  This article gives an update to the discussion with some unofficial guidance from the Nevada Supreme Court, and provides some best practices for drafters. (more…)

Mediation Settlement Agreement

Ever get to the end of a mediation and realize that this may be your only chance to memorialize an agreement with the other side without them trying to change the terms of the deal afterward?  Take this handy Memorandum of Understanding* to your mediation and you will have a ready-to-fill-out template that provides many of the boilerplate provisions seen in many settlement agreements.

 

 

*I am not the author of this agreement and take no credit for its provisions.  Use at your own risk and only after seeking the advice of competent counsel.

Alternative Dispute Resolution Options in Las Vegas, Nevada

Alternative Dispute Resolution Options in Las Vegas, Nevada

There are many pathways to resolving legal disputes in Nevada other than litigating the matter in court.  Some of those pathways, paradoxically, begin with one of the parties filing a lawsuit in court.  Others are initiated by the parties without going to court.  This article explores the various pathways to Alternative Dispute Resolution (“ADR”), including arbitration and mediation and the rules governing them.

(more…)