Mediation Mediator

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)

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)

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…)

In Search of the Efficient Arbitration

In Search of the Efficient Arbitration

 

A frequent complaint about arbitration is that it is not as cost-effective as the parties hoped it would be.  In fact, 69% of corporate counsel, outside counsel, arbitrators, and company executives surveyed believe arbitration fails at least half of the time to meet its goal of providing speed, efficiency, and economy.[1]  What makes arbitration costly?  Many things, but this article will focus on discovery, motion practice, and multiple-arbitrator panels. (more…)

Preparing for Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Family Mediation (Produced by the American Bar Association, Section of Dispute Resolution)

Preparing for Complex Civil Mediation (Produced by the American Bar Association, Section of Dispute Resolution)”

N.R.S. CHAPTER 33 – INJUNCTIONS

GENERAL PROVISIONS

NRS 33.010             Cases in which injunction may be granted.

NRS 33.015             Injunction to restrain unlawful act against witness or victim of crime.

NRS CHAPTER 32 – RECEIVERS

NRS 32.010             Cases in which receiver may be appointed.

NRS 32.015             Additional cases in which receiver may be appointed.

NRS 32.020             Reversion and disposition of unclaimed dividends in receivership.

(Discoverability of Conversations During Deposition Breaks)

Let’s pretend that your client needs a restroom break during a deposition and there is no question pending (thus, not triggering an In Re Stratosphere Corporation, 182 F.R.D. 614 (D. Nev. 1998) problem).  You and your client requested a break.  Before going back into the deposition, you remind your client about the training you gave him to answer only the question asked and not to volunteer information.  You also tell him to beware if opposing counsel asks questions about that smoking gun document that he pay special attention to the second paragraph.  Under a recent Nevada decision, no privilege would attach to that conversation, meaning your client could and would be forced to divulge the contents of that conversation if the examining attorney is aware of the decision. (more…)

For large, complex arbitration, some parties negotiate for and require three arbitrators to hear their dispute.  The problem with this approach, according to the American Arbitration Association (the “AAA”), is that three-arbitrator panels cost the parties on average 5 times as much as a single arbitrator case.  The AAA suggests there may be a more cost efficient way to deliver the same services, as 60% of business disputes filed with the organization resolve before the actual arbitration hearing.  So why not limit the workload of the three arbitrators prior to the arbitration hearing?

The AAA’s solution to this frequent complaint about arbitration being too costly is found in the new Streamlined Three-Arbitrator Panel Option, which allows all pre-hearing matters to be heard by a single arbitrator, with only the final arbitration being heard by the entire panel.  According to the AAA:

The Streamlined Three-Arbitrator Panel Option allows parties to . . . utilizing a single arbitrator to manage the early stages of the case, decide issues related to the exchange of information and resolve other procedural matters without incurring the costs associated with the entire panel . . . By maximizing the use of a single arbitrator, the parties will be able to capitalize on the cost savings provided by a single arbitrator while still preserving their right to have the case ultimately decided by a panel of three arbitrators.

Parties do not have to agree to the streamlined panel method and may have 3 arbitrators hear and decide every matter.  Further, they may at any time withdraw their consent to participate in the streamlined option and will thereafter have all matters heard by a full panel.  This rule change should be applauded by the ADR community as a money-saving method that still gives the litigants the ability to control their arbitration experience through contract.

Jay Young is a top mediator in Las Vegas, Nevada.  ADR Certified since 1994.  Additional 40 hour certification and graduate of Pepperdine Law’s Strauss Institute for Dispute Resolution’s  “Advanced Mediation: Skills and Techniques” program.  Jay is a Nevada Supreme Court Settlement Judge (mediator), a Judge Pro Tem, a Special Master, and a National Mediation Panelist for the American Arbitration Association and Advanced Resolution Management.  Contact him at (855) 777-4476.  Go here for Jay’s full bio.

How do you properly respond to a Nevada subpoena?  As is so often the case in the law, the answer is “it depends.” Let’s first discuss the different types of subpoenas and then decide on the best way to respond to them.

The post assumes that you are not a party to the litigation and that the subpoena is not for trial testimony.  If that is the case, the subpoena is served for the purpose of gathering information one of the parties thinks they need to prove their case, and is called a discovery subpoena.  A discovery subpoena may require the receiving party to turn over documents, allow for the inspection of physical premises, and/or provide testimony.  Nevada Rules of Civil Procedure (“NRCP”), NRCP 45(b)(1), NRCP 30(b)(1). (more…)

RULE 16.  SETTLEMENT CONFERENCES

IN CIVIL APPEALS

       (a) Assignment of Case to Settlement Conference Program.  Any civil appeal in which all parties are represented by counsel and that does not involve termination of parental rights may be assigned to the settlement conference program. The settlement conference program administrator shall determine whether to assign an appeal to the settlement conference program. The settlement conference shall be presided over by a qualified mediator who has been appointed as a settlement judge by the Supreme Court.

       (1) Settlement Notice; Suspension of Rules.  The clerk shall issue a settlement notice informing the parties that the appeal will be assigned to the settlement conference program. The settlement notice automatically stays the time for filing a request for transcripts under Rule 9 and for filing briefs under Rule 31. The notice also stays the preparation and filing of any transcripts requested under Rule 9. (more…)