Nevada Arbitrator and Arbitration

What Constitutes Admissible Evidence

Under Rule 56?

Nevada law provides requires that all fact presented to a court by motion must be by sworn testimony.  Further, “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.”  EDCR 2.21(c).  NRCP 56(e) requires “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge.  See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency (more…)

Nevada Statutes of Limitation and the Discovery Rule

Statutes of limitation are designed to assure fairness to parties and prevent surprise lawsuits by determining the maximum time allowed after an event within which legal proceedings may be initiated.  As a practical matter, statutes of limitation avoid fraud on the court by disallowing claims to linger “until evidence has been lost, memories have faded, and witnesses have disappeared.”  In re Jim L. Shetakis Distrib. Co., 415 B.R. 791, 799 (D. Nev. 2009) aff’d, 401 F. App’x 249 (9th Cir. 2010) (quoting Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (as quoted in Oltman v. Holland America Line, Inc., 538 F.3d 1271, 1278 (9th Cir. 2008))).  The appropriate accrual date after which a claim may not be filed is a question of law if the facts are uncontroverted.  Winn v. Sunrise Hosp. & Med. Ctr., 277 P.3d 458, 463 (2012).

The time allowed to file a claim may be extended pursuant to the “discovery rule”, which is also known as the inquiry notice doctrine.  The discovery rule is available when fairness dictates that the plaintiff should be allowed more time to file her claim because the nature of the claim was hidden from her somehow.  Claimants must demonstrate the reasons or excuses why the statute should be tolled.  Siragusa v. Brown, 971 P.2d 801, 807 (Nev. 1998).  “This rule requires a plaintiff to use due diligence in determining the existence of a cause of action and delays the accrual of the cause of action until the plaintiff obtains inquiry notice. Bemis v. Estate of Bemis, 114 Nev. 1021, 1025, 967 P.2d 437, 440 (1998) (applying the inquiry notice standard to determine when the applicable statute of limitations ran).” (more…)

In Nevada, a claim for civil conspiracy requires: (1) two or more parties; (2) acting in concert; (3) with an intent to accomplish an unlawful objective for the purpose of harming another; and (4) damages. Consolidated Generator-Nevada Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 917 P.2d 1251, 1256 (1998).  When alleging civil conspiracy between corporations, one must plead and prove that agent(s) of each corporation involved acted outside their employment and personally became a conspirator.

Under the Intracorporate Conspiracy doctrine, members of a corporation, such as officers or employees, cannot be held to have conspired among themselves, because the corporation and its agents constitute a single actor for purposes of law. Therefore, the plurality of actors requirement needed to constitute a conspiracy is not satisfied.  “Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacity on behalf of the corporation not as individuals for their individual advantage.” Collins v. Union Federal Savings and Loan Association, 99 Nev. 284, 304, 662 P.2d 610, 622 (1983). “[I]n order to sustain a claim for civil conspiracy for agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment to render them a separate “person” for purposes of the conspiracy.” Faulkner v. Arkansas Children’s Hospital, 69 S.W. 3d, 393, 407 (Ark. 2002). Thus, it is incumbent upon the Plaintiff to allege sufficient facts that corporations which are alleged to be agents of one another received “a benefit wholly separable from the more general and indirect corporate benefit always present under the circumstances surrounding virtually any alleged corporate conspiracy.” Seleman v. Am. Sports Underwriters Inc., 697, F. Supp. 225, 239 (W. D. VA 1988). See also Trau-Med of Am. Inc. v. Allstate Ins. Co., 71 SW 3d 691, 704 (Tenn. 2002) (affirming dismissal of a conspiracy claim and noting “in this case, the plaintiff does not even intimate much less expressly allege in the complaint that the corporate agents involved in conspiratorial conduct were acting outside the scope of their employment or that they were pursuing their own personal objectives”).

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.

Table of Contents:

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

What Is Mediation?

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

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

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

What is the Role of the Mediator?

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

A good brief will contain:

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

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

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

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

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

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

What is Your Role at Mediation?

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

How Does Mediation Compare to Litigation?

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

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

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

Why Mediate?

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

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

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

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

Who May Attend The Mediation?

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

Is Mediation Confidential?

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

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

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

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

What Will Happen At The Mediation?

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

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

What Is A Separate Session?

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

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

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

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

How Long Will the Mediation Last?

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

What Helps To Get The Case Settled?

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

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

A Subpoena Seeking Documents from a Third Party That Could be Obtained from a Party is Unduly Burdensome

The discovery standards and case law applied when seeking documents or information from non-parties differ from those of a party to the litigation. The limits on discovery should be more narrowly construed when non-parties are the target of discovery. Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 46, 649 (9th Cir. 1980) (recognizing that although there is a strong policy in favor of liberal discovery, there is potential for abuse in applying that policy to nonparties); In re Subpoena to Apple, Inc., No. 5:14-cv-80139-LHK-PSG, 2014 WL 2798863, *2 (N.D. Cal., June 19, 2014) (“Discovery may be limited to ‘protect third parties from harassment, inconvenience, or disclosure of confidential documents.'” quoting Dart, supra); Edwards v. California Dairies, Inc., 2014 WL 2465934 at *2 (“While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” citing Dart, supra).  Pursuant to Rule 45(c)(2)(B), which allows the answering party to timely object to the Subpoena, once a party raises a timely objection to a Subpoena, it is not required to produce documents, or even search for them, until the subpoenaing party obtains an order compelling the same.  Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, at 494 & n. 5 (9th Cir. 1983)); see also Forsythe v. Brown, 281 F.R.D. 577, 587 (D.Nev.2012) report and recommendation adopted, 3:10–CV–00716–RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012). (more…)

Once you have exhausted the witness’ knowledge regarding their knowledge of the subject matter of the dispute, filled in the gaps, and created usable testimony by gaining recapitulation and are about to conclude the deposition, you want to do all that you can to make sure the witness cannot later change testimony without looking biased or lacking in veracity.  Consider asking the following questions which will provide you with some good testimony in the event the witness attempts to materially change his or her testimony at the time of trial:

  • Witness, do you agree that I have given you every opportunity to tell me what you want the court to know about the incident leading to this suit?
  • Do you agree that you have given me truthful testimony today?
  • Is there anything that you think is important about the incidents related to this lawsuit that I have not asked you about?
  • If there is, please tell me about that now.
  • So, you have told me everything that you believe is important about this lawsuit?

Gaining this testimony will not prevent the witness from changing testimony, but it will allow you to highlight the fact that the witness didn’t think the “new” testimony was important at the time of the deposition, and allow you to argue that the trier of fact should discount the testimony for that reason.

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Can a Party to Litigation Object to a Subpoena Issued to a Non-Party Witness for Documents?

It happens often.  A subpoena is issued to a third party who isn’t part of litigation because that party might have documents that are useful in a lawsuit.  When responding to the subpoena, can a party to the litigation step in and object on behalf of the non-party witness?  The law is clear that a party has standing to challenge a subpoena issued to a non-party only “when it alleges a personal right or privilege with respect to, or has possession of, the materials subpoenaed.” See Platinum Air Charters, LLC v. Aviation Ventures, Inc., No. 205CV-01451-RCJ-LRL, 2007 WL 121674, at *2 (D. Nev. Jan. 10, 2007) (citing Jez v. Dow Chemical Co., Inc., 402 F.Supp.2d 783, 784–85 (S.D.Tex.2005)); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-CV-832-RFB-VCF, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017).  In other words, because the party is not the recipient of the subpoena, it has standing to challenge only where its challenge asserts that the information is privileged or protected to itself.  See Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (Jerry T. O’Brien, Inc. v. Securities and Exchange Commission, 704 F.2d 1065, 1068 (9th Cir.1983), rev’d on other grounds, 467 U.S. 735, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984), citing Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 538, 27 L.Ed.2d 580 (1971)). (more…)

 Readiness Checklist for Mediation:

Eight Things You Should Discuss With Your Client Before Mediation

The Mediation Process

  • For a printer-friendly version of this checklist, click here
  • What is mediation and how is it different from court or arbitration?
  • Why should the client consider mediation?
  • What is the mediator’s role?
  • What is the client’s role in mediation?
  • Who may attend the mediation?
  • Confidentiality in mediation
  • Discuss joint and separate sessions (also called caucuses)
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether the client will speak directly with the mediator and/or the other party
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

Cases Interpreting NRS 38.241; Vacatur of Arbitration Award—A Digest

In General

Mere error in the application of the law is not grounds to vacate an arbitration award.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

An arbitrator manifestly disregards the law, so as to require vacation of arbitration award, when he or she recognizes that the law absolutely requires a given result and nonetheless refuses to apply the law correctly.  Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004).

Arbitrator’s manifest disregard of the law, so as to require vacation of arbitration award, is something beyond and different from a misinterpretation or error in applying the law.   Bohlmann v. Byron John Printz and Ash, Inc., 96 P.3d 1155, 120 Nev. 543 (2004). (more…)

Royal Oak, Michigan, July 12, 2018: Howard & Howard Attorneys PLLC is pleased to announce that five of our attorneys have been named to Nevada Business Magazines 2018 Legal Elite and Best Up and Coming Attorneys lists.

The Howard & Howard attorneys named to the 2018 Legal Elite list are as follows:

  • W. West Allen
  • Robert W. Hernquist
  • Matthew J. Kreutzer
  • Jay Young
The Howard & Howard attorney named to the 2018 “Best Up and Coming Attorneys” list is as follows:
  •  Jason Weiland

Legal Elite, published since 2008, recognizes the top attorney’s in the state as nominated by their peers. The exclusive list includes only the top 4 percent of licensed attorneys in the state. This years list features over 300 attorneys on the Northern and Southern Nevada lists. In addition, there are breakout lists for the Best Up and Coming and Best Government attorneys. In order to be included, attorneys passed several levels of scrutiny. After nominations closed, ballots were reviewed for eligibility and each voting attorney was vetted through the State Bar of Nevada to confirm their good standing.

Nominated lawyers were scored based on the number and type of votes they received. Nominations from attorneys at other firms received a scoring of three points and nominations from the same firm received one point. After final scores were tabulated, the top scorers were then verified again and contacted to finalize the Legal Elite list.

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

Can an Arbitrator be Removed During the Pendency of an Arbitration?

What do you do if you feel that the arbitrator appointed to hear your dispute isn’t providing a fair and impartial atmosphere in which your matter can be heard?  Can you challenge the Arbitrator before he or she makes the final decision in the matter?  What cause is sufficient to have an arbitrator removed?  As is the case with so many questions in the law, the answer is: it depends.  For the most part, parties to an arbitration who feel there is cause to remove an arbitrator are better off if it is a proceeding under the rules of the American Arbitration Association (“AAA”) or JAMS than if it a proceeding governed under the Federal Arbitration Act (“FAA”) or the Revised Uniform Arbitration Act (“RUAA”). (more…)

HOWARD & HOWARD CONGRATULATES OUR TWELVE ATTORNEYS NAMED TO MOUNTAIN STATES SUPER LAWYERS AND RISING STARS 2018 (WEDNESDAY, JUNE 27, 2018)

Royal Oak, Michigan, June 27, 2018: Twelve of Howard & Howards attorneys were recently named to the 2018 Mountain States Super Lawyers and Rising Stars lists as a result of a patented selection process. This process includes peer evaluation and independent research. Mountain States Super Lawyers covers the states of Nevada, Utah, Montana, Idaho and Wyoming. Only five percent of the lawyers in each of these states are named to Super Lawyers and two and one half percent to Rising Stars.

The Howard & Howard attorneys and the practice areas under which they are listed in 2018 Mountain States Super Lawyers and Rising Stars are as follows:

Nevada Office Super Lawyers:

Nevada Office Rising Stars:

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners.The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

The Secrets of Power Negotiating

The Mediation Process

  • For printer-friendly version of this article, click here
  • What is the client’s role in the mediation?
  • Discuss whether the client will speak directly with mediator and/or the other party
  • Discuss whether an apology to or from a party might be appropriate
  • Discuss whether an opening presentation at mediation is desirable or appropriate
  • Are there desirable non-monetary solutions, such as future business or payment in-kind?

(more…)

REFERENCE TO JAMS RULES IN CONTRACT ALLOWS ARBITRATOR TO DECIDE ARBITRABILITY

by Guest Blogger Michael R. Lied

Usually, it is up to a court to determine if parties to an agreement have decided to let an arbitrator decide disputes under that agreement. But not always.

Simply Wireless sells cellular telephone goods and services to consumers and provides advertising, marketing, and distribution services to other businesses in the telecommunications industry. Simply Wireless is the registered owner of multiple trademarks using the name SIMPLY WIRELESS. Simply Wireless is also the originator and owner of the trademark SIMPLY PREPAID in connection with the sale of cellular telephone goods and services.

T-Mobile also provides cellular services. Although T-Mobile and Simply Wireless compete, they have partnered on several projects.  T-Mobile and Simply Wireless partnered on a project by executing a contract referred to as the “HSN/QVC Agreement”. (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

Original Publication Date: 3.11.15

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…)

Standard Alternative Dispute Resolution (Arbitration and Mediation) Clauses

I often hear litigators and clients complaining that the process of arbitration is flawed and does not deliver on its aspirations to provide a cheaper, quicker alternative to litigation in court.  My response is that they are not really upset with the process of arbitration or mediation, but with the person who drafted the Alternative Dispute Resolution clause in their contract.  The Arbitrator must administer the arbitration proceed pursuant to how the parties wrote the agreement.  Therefore, as I wrote in this post, if you want a better process, write a better contract.  I have endeavored to provide both my preferred standard ADR clause (with explanations), but also some alternative model arbitration, mediation, and ADR clauses from other trusted sources.  The drafter should determine the process which will best benefit each client and draft the clause accordingly.

The italicized language below explains the rationale behind clauses and why one might choose that clause over another alternative.[1] (more…)

Motions to Vacate Modify, Correct, or Modify an Arbitration Award

The United States Supreme Court established over 160 years ago that courts in the U.S. will not set aside an arbitration for error in law or fact.[1]  The Supreme Court held then that if an arbitrator has “given their honest, incorrupt judgment on the subject-matters submitted to them, after a full and fair hearing of the parties, [the parties] are bound by it; and a court of chancery have no right to annul their award because it thinks it could have made a better.”[2]  The Court argued that by voluntarily choosing by contract to arbitrate rather than litigate a dispute, the parties have bargained to be bound by the arbitrator’s construction of the agreement, which should not be disturbed by the courts.[3]  Further, if a court were to choose to weigh the merits of a grievance, it would “usurp[] a function which is entrusted to the arbitration tribunal.”[4] (more…)

HOWARD & HOWARD ATTORNEYS JAMES KOHL AND JAY YOUNG REAPPOINTED SETTLEMENT JUDGES BY NEVADA SUPREME COURT (TUESDAY, JANUARY 30, 2018)

Las Vegas, January 30, 2018: James Kohl and Jay Young, of Howard & Howard in Las Vegas, have been reappointed Settlement Judges by the Nevada Supreme Court for a second three-year term.

The announcement was made by Nevada Supreme Court Justice Ron Parraguirre.

The Nevada Supreme Court has mandated that certain matters on appeal participate in an Alternative Dispute Resolution (ADR) program to mediate disputes before an appeal is heard.

The Settlement Judges, who serve as impartial third parties, dont rule on the cases they hear. Instead, they work with the parties in communicating their interests to promote a mutually acceptable resolution to the dispute.

According to the Court, its Settlement Judges are required to have a high level of training and experience as professional mediators. Over half of the cases assigned to the ADR program settle with the assistance of a Settlement Judge.

Kohl, a partner at Howard & Howard, has been an arbitrator and mediator for the State Bar of Nevada Fee Dispute Committee and an arbitrator for the Nevada Courts Annexed Arbitration Program. In addition, he acts as a private mediator.

Recognized by his peers as an outstanding attorney, Kohl is AV-rated by Martindale-Hubbell.

Young, also a partner with the firm, is a national panelist with the American Arbitration Association, an arbitrator/mediator with Advance Resolution Management and an arbitrator with the Better Business Bureau.

In addition, Young is AV-rated by Martindale-Hubbell and has been recognized as one of the Top 100 SuperLawyers by Mountain States Super Lawyers, Best Lawyers in America (arbitration), Nevada Business magazine Legal Elite and Vegas, Inc. Top Lawyers.

About Howard & Howard

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners.The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howards major areas of practice include: bankruptcy and creditors rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firms website at www.howardandhoward.com.


  • Stacey M. Parzuchowski
    Marketing & Communications Manager
    Howard & Howard Attorneys PLLC
    450 West Fourth Street, Royal Oak, MI 48067
    (248) 723-0412
    SParzuchowski@howardandhoward.com

(more…)

Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met.  There is no requirement that the parties expressly identify the information as a “trade secret”.  Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact. Frantz v. Johnson, 116 Nev. 455, 465 n. 4, 999 P.2d 351, 358 n. 4 (2000).

 

Courts may consider, however, such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors.  Id., 116 Nev. at 467, 999 P.2d at 358-59.  The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner.  This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information.  NRS 600A.032.

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

confirm award

Motion to confirm arbitration award

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

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

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Nevada 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 38.248  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 38.228  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)