Category: Alternative Dispute Resolution

Mediation and Overconfidence Bias

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According to Russell Korobkin, “Psychological Impediments to Mediation Success,” 21 Ohio St. J. on Disp. Resolution 281, 287 (2006), 80% of professional truckers believe they are safer than average and 94% of college professors think they are above average.   Lawyers and litigants tend to suffer from the same fate–having overconfidence in their likelihood of success. …

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Alternative Dispute Resolution, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator

Nevada Personal Injury Frequently Asked Questions

Posted on By Jay Young

PERSONAL INJURY FREQUENTLY ASKED QUESTIONS

I Was Injured In An Accident.  What Should I do?

Hurt in an Auto Accident

For starters, check yourself for injuries and call the police or ask someone else to call for you if you, your passengers, or occupants of the other vehicle(s) are injured.  If you or someone else is seriously injured, try not to move the injured person while waiting for an ambulance.  Even if nobody is injured, and regardless of who you think was at fault, call the police so they can issue an accident report.  Your insurance company may require it in order to cover damages to your vehicle or to the other vehicle.

Turn on your hazard lights if they are working or put out road flares if you have them.  If the vehicles are causing a hazard, consider pulling yours to the side of the road.  Otherwise, leave them where they are and get to the side of the road or a safe distance from traffic if you can.

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Alternative Dispute Resolution, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

U.S. Supreme Court Holds That Arbitrators, Not Courts, Decide Arbitrability

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In a unanimous decision authored by Justice Kavanaugh, the U.S. Supreme Court held that under the Federal Arbitration Act (“FAA”), “when the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract even if the court thinks that the arbitrability claim is wholly groundless.”  The decision in Henry Shein, Inc. v. Archer & White Sales, Inc., issued January 8, 2019, addresses a split among the six circuit courts which have heard similar matters and vacates the decision of the Fifth Circuit which held that when a court determines that the request to have the matter arbitrated is “wholly groundless,” the court may deny a motion to allow an arbitrator to determine whether a matter is subject to arbitration.

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Alternative Dispute Resolution, Arbitration Arbitrator, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator

The Changes Coming to the Nevada Rules of Civil Procedure: an Overview

Posted on By Jay Young 1 Comment on The Changes Coming to the Nevada Rules of Civil Procedure: an Overview
The Changes Coming to the Nevada Rules of Civil Procedure: an Overview

The Nevada Supreme Court calls its changes to the 2019 Nevada Rules of Civil Procedure (“NRCP”) “exhaustive.”  Although the changes do not take effect until March 1, 2019, since they are so comprehensive, a complete read would be advisable for all practitioners.  The amended rules (with the committee’s explanatory notes) are available in this post; a red-lined PDF version can be found here.  The amendments largely bring our rules into alignment with the Federal Rules of Civil Procedure (“FRCP”), while retaining some Nevada-centric practices.  Those familiar with the FRCP may find the version of NRCP red-lined against FRCP a most helpful document.  The changes are too many to summarize here, but I have noted some which may impact civil practice the most regularly.  They are presented in numerical order.

Rule 4.1 Waiver of Service:

Rule 4.1 incorporates the federal waiver of service rule, and without FRCP 4(d)(2)’s penalty provision.  I’m uncertain what the rule committee intended, but the lack of penalty would seem to result in a defendant merely taking the full 30 days to delay the matter, refuse to waive service, and force the plaintiff to serve the old fashioned way, costing time and money.  I have reached out a member of the committee to get a better understanding of the intention and how practitioners can comply with Rule 4.1(a)(1)(4), which requires that the notice contain a discussion of the consequences of failing to waive service. 

[1.28.19 EDIT]:  On 1.25.19, the Supreme Court issued an amendment to ADKT 522 which addresses this concerns and adds the federal-style penalties into the rule.  The amendment also alters the official form.  A copy of the Order can be found here.

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Alternative Dispute Resolution, Business Law, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

HOWARD & HOWARD CONGRATULATES ITS ATTORNEYS NAMED TO BEST LAWYERS 2019 

Posted on By Jay Young

Royal Oak, Michigan, August 28, 2018: Howard & Howard Attorneys PLLC is pleased to announce that twenty-nine of our attorneys were selected by their peers for inclusion in The Best Lawyers in America® 2019. Since it was first published in 1983, Best Lawyers®has become universally regarded as the definitive guide to legal excellence. Best Lawyers® lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world), and almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world were received. For the 2019 Edition of The Best Lawyers in America®, 7.8 million votes were analyzed, which resulted in almost 60,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers® is considered a singular honor. Corporate Counsel magazine has called Best Lawyers® “the most respected referral list of attorneys in practice.”

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Alternative Dispute Resolution, Arbitration Arbitrator

Readiness Checklist for Mediation: Eight Things You Should Discuss With Your Client Before Mediation

Posted on By Jay Young

 Readiness Checklist for Mediation:

Eight Things You Should Discuss With Your Client Before Mediation

The Mediation Process

  • 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?

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Alternative Dispute Resolution, Arbitration Arbitrator, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation, Mediation Mediator

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

Posted on By Jay Young

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”).

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Alternative Dispute Resolution, Arbitration Arbitrator, Business Law, Employment Law, Franchise Law, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Model Alternative Dispute Resolution (Arbitration and Mediation) Clauses

Posted on By Jay Young

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]

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Alternative Dispute Resolution, Arbitration Arbitrator, Business Law, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation, Mediation Mediator

Mediation FAQ: What Helps To Get The Case Settled?

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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…

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Alternative Dispute Resolution, J, Mediation Mediator

Mediation FAQ: How Long Will the Mediation Last?

Posted on By Jay Young No Comments on Mediation FAQ: How Long Will the Mediation Last?

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…

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Alternative Dispute Resolution, J, Mediation Mediator