Tag: Phil Cutler

Sample Arbitration Submission Agreement

While arbitration is a recognized dispute resolution process – particularly in the business-to-business context – it is fundamentally a creature of contractual agreement among the parties and a written agreement to arbitrate is required.  See, e.g., RCW 7.04A.060.  The agreement to arbitrate may be entered into pre-dispute or after a dispute has arisen.  The following presumes that the parties did not agree to arbitration in their original dealings but, now that a dispute has arisen, have decided to use arbitration – rather than the courts – to resolve it.  As arbitration is contractual, it is vitally important that all necessary parties sign the agreement to arbitrate, as only parties will be bound by the result.  Either pre-dispute or post-dispute the parties have a choice:  arbitrate using the services of a neutral administering organization that appoints the arbitrator(s) and manages the process, or privately, on an ad hoc basis, with the parties or the arbitrator(s) managing the process.  Both scenarios are addressed in the following materials.  As with drafting pre-dispute dispute resolution clauses, it is vitally important that counsel understand the arbitration process and craft a clause that sets up an appropriate framework for resolving the dispute.

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Doing Business in Washington? Understand the ADR Options.

ADR IN WASHINGTON – Chapter 28 of “Doing Business in Washington” (5th ed., WSBA International Section) I was asked to author the chapter on Alternative Dispute Resolution for the 5th edition of “Doing Business in Washington”, published (fall 2010) by the WSBA International Section in conjunction with the Washington Department of Commerce.  I also authored the same chapter in prior…

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Arbitration – Getting the Evidence, Getting it in . . . and Persuading the Arbitrator

ARBITRATION PRACTICE & PROCEDURE The following material was prepared for an in-house law firm CLE in the fall of 2008. While arbitrations and court cases share many common traits, an arbitration is generally less formal procedurally than a court case, the discovery available in arbitration is a good deal less expansive than that available in litigation, and the decision-maker is…

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Realizing the Benefits of Arbitration – Top 10 Tips to CEOs and CFOs

In the fall of 2009 the College of Commercial Arbitrators, a by-invitation only association of leading domestic and international arbitrators, in conjunction with the American Arbitration Association and other major arbitration-provider organizations, hosted a summit of leading lawyers, arbitrators, business executives, and general counsel to discuss ways in which arbitration – long viewed among businesses as the preferred domestic and…

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Trial Date Bumped? Brokered Out? Consider Arbitrating Your Case

By Phil Cutler Cutler Nylander & Hayton PS 1191 Second Avenue Seattle, WA  98101 philcutler@cnhlaw.com 206-340-4600 Philip E. Cutler © 2011     It has undoubtedly happened to you.  It is the week before trial.  You are in the final throes of case preparation.  You are feeling good about the case and your preparation.  You are looking forward to trial,…

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Intricacies of Dispute Resolution Clauses Within International Business Agreements-Key Drafting Considerations

  INTRICACIES OF DISPUTE RESOLUTION CLAUSES WITHIN INTERNATIONAL BUSINESS AGREEMENTS – KEY DRAFTING CONSIDERATIONS by Philip E. Cutler Cutler Nylander & Hayton, P.S. 1191 Second Avenue , Suite 1650 Seattle, WA 98101 Telephone: (206) 340-4600 Facsimile: (206) 340-4646 © 2010, Philip E. Cutler Phil Cutler is a principal in the Seattle law firm Cutler Nylander & Hayton, P.S., where his…

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Reclaiming the Promise of Arbitration

By Phil Cutler[1]

From the earliest days of the Washington Territory, arbitration has been a recognized method of dispute resolution in our state;[2] the Legislature enacted Washington’s first arbitration act in 1869.[3] Historically, arbitration has been popular, especially among businesses; notwithstanding its higher forum costs (the parties pay not insignificant filing fees and bear the cost of compensating the arbitrator), it offered parties a number of benefits not available in a litigation forum:  the opportunity to select the decision-maker, usually someone experienced in resolving business disputes; confidentiality; an early opportunity for a hearing on the merits; and a final award, not subject to interminable appeals.  Moreover, arbitration was a more expeditious and less expensive alternative to litigation, largely because “discovery” and motions practice in arbitration were limited and parties had no need for significant case preparation time.

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Practice Pointers for the Lawyer Advising Clients in Mediation-A Mediator’s Perspective

Just as mediation is an art, not a science, there is an art to advocacy in mediation.  I have developed the following “pointers” during the course of over 30 years as a trial lawyer in complex commercial and business disputes, and 25-plus years serving as mediator in such cases.  Although they reflect my personal experience as lawyer and mediator in commercial cases, the essential learning points cut across practice lines.

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King County Superior Court Early Mediation Pilot Project

Historically, only 3-5% of civil cases filed in King County Superior Court proceed to trial. Some are disposed of on motion, some plaintiffs simply withdraw their complaint; most are resolved by settlement – often through mediation. While mediation offers a proven and effective means of resolving a dispute prior to trial, the later it occurs in the “life” of a…

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