Giselle Carson's feature in First Coast Success is on stands now!

The Jacksonville Financial News and Daily Record's First Coast Success feature on Giselle Carson is available now

Cover page of the April 25th Edition of the
Jacksonville Financial News and Daily Record

We are proud to have Giselle Carson as a Shareholder at Marks Gray! Today the Jacksonville News and Daily record published their latest First Coast Success story which highlights Giselle's accomplishments. To read the online version visit the Daily Record website or download the digital version of the print article here. The audio recording of the interview will be featured on First Coast Connect with Melissa Ross and available for replay here.

Giselle Carson to be Featured on First Coast Success, April 25 Edition

Marks Gray Shareholder Giselle Carson’s feature will be in print and radio on April 25

Shareholder Giselle Carson

We're thrilled to announce that Marks Gray Shareholder, Giselle Carson, will be the latest accomplished local business leader to be featured in the Jacksonville Daily Record and First Coast Connect's First Coast Success Story. Her journey to Jacksonville will be profiled in print and on radio on April 25th. Check the Marks Gray blog for more information and to read/hear Giselle's interview. 

Congratulations, Ms. Carson!

Jill F. Bechtold Invited to Join International Association of Defense Counsel (IADC)

Shareholder Jill F. Bechtold accepts invitation to join the IADC 

Shareholder Jill F. Bechtold

Marks Gray Shareholder Jill F. Bechtold accepted her invitation to join the International Association of Defense Counsel (IADC). The IADC is comprised of 2500 leading defense, trial and corporate attorneys, in house counsel, and insurance executives throughout the world. Membership is granted through a nomination, peer review, board evaluation and invitation only process. An invitation to join the IADC indicates the nominee has not only met but exceeded the rigorous career qualifications set forth by the IADC Board of Directors.

The IADC dedicates itself to serving and benefiting its members, the legal profession, and the civil justice system by enhancing the development of skills, professionalism, and camaraderie in the practice of law. Members of the IADC are part of a distinguished group of professionals with advanced skills in defense law who look to each other to further their skills, their business, and their profession. Ms. Bechtold joins fellow Marks Gray Shareholder Jeptha F. Barbour in this prestigious organization.

About Jill F. Bechtold

Ms. Bechtold practices in the areas of medical and professional liability defense, products liability and general civil litigation defense. She has been recognized as a top lawyer by Florida Super Lawyer and Florida Trend magazines, has an AV Rating by Martindale-Hubbell, and is a member of the Defense Research Institute (DRI), Chester Bedell Inn of Court, and the Florida Defense Lawyers Association.  Ms. Bechtold represents both individual and enterprise clients. She is a member of the Leadership Jacksonville Class of 2015 as well as a Jacksonville Business Journal 2015 Woman of Influence. Ms. Bechtold earned her law degree from the University of Florida and joined Marks Gray in 2013. She speaks nationwide before defense lawyers on Reptile Strategy and related topics. She can be reached at jbechtold@marksgray.com.

About IADC

The International Association of Defense Counsel (IADC) is an invitation-only professional association for corporate and insurance defense lawyers and insurance executives around the world. The IADC has been serving a distinguished membership of civil defense lawyers and industry executives since 1920. Members of the IADC practice in virtually every state and approximately 40 countries. More information can be found at www.iadclaw.org. 

Giselle Carson to speak at Jacksonville's Inaugural Women Forward Event May 19th

Marks Gray Shareholder Giselle Carson will speak on panel of local businesswomen presented by Dixon Hughes Goodman LLP

Giselle Carson, Shareholder at Marks Gray

Marks Gray Shareholder Giselle Carson will be a featured panelist at Jacksonville’s Inaugural Women Forward Panel Discussion, “How to Drive Business Development Forward: A Female Perspective” presented by Dixon Hughes Goodman LLP on May 19 at the Hyatt Regency Jacksonville Riverfront. The breakfast panel, also featuring Jacksonville’s Renee Parenteau of Renee Parenteau Photography and Kristin Keen of Rethreaded, is designed to enhance business development understanding and skill, with a specific emphasis on the challenges facing women in the business development realm. The topics of conversation will be key business development essentials for women such as managing others, understanding value and growing relationships.

Event registration is now open. Attendees will have the opportunity to hear from several businesswomen in local and national leadership positions as they share their insights on women helping women. To register visit the Eventbrite registration site.

About Giselle Carson, Esq.

Giselle Carson is a Shareholder at Marks Gray, P.A. in Jacksonville, FL. Her primary areas of practice are business immigration, sports immigration, I-9 compliance and audits and litigation. Giselle is an author and frequent speaker on immigration matters. She has been honored as Lawyer of the Year by the Financial News and Daily Record. She is “AV” rated through Martindale-Hubbell, and a Top Rated Immigration Lawyer by the American Lawyer & Corporate Counsel. She is currently serving as the Jacksonville Bar Association President.

Additional information about the event can be found on The Women Forward website. 

April Immigration Bulletin is Out!

H-1B Cap Updates for FY 2017 - Over 236,000 H-1B Petitions Filed and Lottery Completed

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USCIS just announced that it received over 236,000 cap-subject H-1B petitions. This number is just slightly higher than last year when USCIS received 233,000 petitions. 

 

We don’t yet have the number of U.S. Master’s vs. Bachelor’s degree petitions received.   We know that more than 20,000 U.S. Master’s petitions were received. 

 

USCIS conducted the lottery process April 9^th, 2016 and selected the required 65,000 Bachelor’s and 20,000 U.S. Master’s petitions. Petitions not selected will be returned over the following months. Prior to returning those unselected petitions, USCIS will start issuing receipts for those petitions selected starting with those that were filed via premium processing. 

 

To read USCIS press release click here.

 

As we track the H-1B filings, we will provide updates via our blog and newsletter.  In the meantime, this news alert contains several pieces of information relating to the H-1B process should you not be selected for the H-1B.

 

To stay updated on current immigration issues, we invite you to subscribe to our blog. 

Back Up Plans for Immigrants Who Don't Secure an H-1B Visa

While many foreign nationals might have to wait until next April for another chance at H-1B status, the following options should be considered for affected employees:

H-1B’s that Are Cap-Exempt

These include petitions for employment at an institution of higher education, or a related or affiliated nonprofit entity, nonprofit research organization, or governmental research organization and physicians on J-1 visas who receive H-1B status through the Conrad 30 program on the basis of agreeing to work in medically underserved areas for three years. H-1B visas are also available for beneficiaries filing for amendments, extensions, and certain employment transfer.

STEM/OPT Extension and F-1/CPT

A 24-month optional practical training (OPT) for foreign nationals with advanced U.S. degrees in designated Science, Technology, Engineering or Math (STEM) fields.  A 7-month OPT extension for those currently using the 17-month extension. The new 24-month STEM OPT rule allows DHS to designate "related fields" on the STEM list. 

"In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences)." To qualify for the STEM/OPT, employers must be enrolled in E-Verify and complete an individualized Form I-983 "Mentoring and Training Plan".  Students must work with their DSO to file for the STEM/OPT benefit.    

Foreign students should also look into continuing in F-1 status and explore with their DSO internship opportunities under curricular practical training (CPT).

Visas for Professionals from Canada, Mexico, Australia, Chile and Singapore

Certain Canadian and Mexican professionals might qualify for a TN visa available under the NAFTA.   To qualify, the foreign national must have the required nationality, be offered a temporary position by a U.S. employer in one of the professions specified in Appendix 1603.D.1 of NAFTA and possess the degree or credentials required under NAFTA for the position.  

Nationals of Australia should consider the E-3 visa and nationals of Chile and Singapore should consider the H-1B1 visa.

Other Work Visa Categories

The L-1 visa, intra-company transferee, is available to certain employees who have worked for a parent, branch, subsidiary or affiliate of the U.S. employer outside of the U.S.   To qualify, the immigrant must have worked for at least one consecutive year full time in the prior three years.  The employer must seek to transfer the employee to the U.S. to work as a manager/executive or specialized knowledge professional.

The O-1A is available to individuals who can demonstrate extraordinary ability in the sciences, education, business or athletics.  The evidence must show that the candidate is among the small percentage of people who have risen to the very top of their field of endeavor, as demonstrated by sustained international or national recognition for their achievements in the field.

The E-1 or E-2 is available to principals and employees of companies whose country of majority ownership has a treaty of commerce with the U.S.  E-1 treaty trader status is available to businesspersons who seek to engage in substantial trade in goods or services.  The E-2 treaty investor status is available to individuals who seek to develop and direct the operations of a business in which the foreign national or his/her employer has invested or is in the process of investing a substantial amount of capital.

Conclusion

Unfortunately, the currently insufficient number of H-1B visas for highly skilled temporary workers and limited number of alternatives is creating significant challenges for U.S. employers that rely on foreign workers, particularly in the high technology and health care industries.  Early planning, creativity, and flexibility are critical.

We will continue to monitor and provide updates on further developments in immigration law, including any potential changes to the H-1B program and visa availability.

Limited Window of Opportunity to File for Seven Month STEM OPT Extension Under Revised Rule

Foreign students currently on STEM OPT may apply for an additional seven months to benefit from the new 24-month period of STEM OPT rule. But, the time frame to apply is limited. According to the latest USCIS update, applicants must submit required paperwork to request the extension between May 10 – August 8, 2016.   

 

To qualify for this seven-month extension, students must have at least 150 calendar days remaining before the end of the 17-month OPT period at the time the Form I-765 is filed. They must also meet all other requirements for the 24-month STEM OPT extension. The 150-day minimum remainder of OPT time is aimed to provide the student with at least one year of practical training under the extension. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. 

 

DHS will not automatically convert 17-month extensions into 24-month extensions. Students considering applying for this extension should contact their DSO as soon as possible to obtain additional guidance and authorization to proceed with the application.  

Traveling Abroad While a Change of Status is Pending is Fatal

Often foreign nationals are admitted in one category and apply for a change of status (COS) to another category while in the U.S. For example, we just filed cap-subject H-1B petitions for many immigrants who were in F-1/OPT status requesting a COS to H-1B. If an immigrant applies for a COS and travels abroad while the petition is pending, their application would be considered abandoned and USCIS would issue a denial. Traveling abroad will also result in a denial of any Form I-765, Application for Employment Authorization, filed before the COS is approved. Therefore, traveling abroad can be fatal to your filing.

Expired I-9 Form Currently in Use

The current Form I-9 Employment Eligibility Verification expired March 31, 2016. However, USCIS has allowed employers to continue to use the current version of the Form I 9 until additional comments are received and a new form is finalized and approved.

Public comments may be submitted until April 27, 2016.  In response to the public comments already received, USCIS has made changes to the proposed new form including:

• Validations on certain fields to ensure information is entered correctly;
• Drop-down lists and calendars;
• Embedded instructions for completing each field;
• A dedicated area to enter additional information that employers are currently annotating in the margins;
• A quick-response (QR) code that generates once the form is printed to facilitate audits; and
• Removing the requirement that foreign nationals provide both their Form I-94 number and passport information in Section 1.

Employers should continue to use the current version of the Form I-9 until the new proposed version is released. USCIS will post the final version on its website once it is available. We will post updates on this important issue as they are made available.

Edward L. Birk Appointed to Florida Bar Media and Communications Law Committee

Edward L. Birk, Shareholder at Marks Gray, P.A. begins another term on the Media and Communications Committee

Marks Gray Shareholder, Edward L. Birk

Edward Birk, a First Amendment and media partner at Marks Gray, P.A., has been appointed to another term on the Florida Bar Media and Communications Law Committee.  The committee provides attorneys a forum for exchanging information and educating the public about free speech, free press, and the ever-developing world of electronic communications.  Committee members often represent news organizations as well as government agencies involved in public records and open government issues.  The committee engages in activities touching the full spectrum of communications methods, including print, broadcast, cable, the internet, and emerging technologies. The committee also promotes better understanding among members of The Florida Bar, the news media, and the public. The committee plans the annual Media Law Conference, Reporters' Workshop, Media Awards and produces and updates the Reporter’s Handbook.

Mr. Birk has served on the committee for several years, including in the positions of vice-chair and chair.  Before entering the practice of law, he worked as a reporter and editor for The Associated Press in Massachusetts and Florida. For nearly twenty years, he has been representing clients in matters related to the First Amendment, privacy, open government, access to courts, news gathering torts, copyright and trademark infringement.  Clients call on him during all stages of newsgathering, from conception of story ideas, to source development, research, writing, script and story review, broadcast and publication to post-broadcast responses and defenses against legal action when the arise. 

Jacksonville Bar Bulletin: The Power to Transform

Have you given back to the community recently? Marks Gray Shareholder and Jacksonville Bar Association President, Giselle Carson, discusses the influence of community service in her April 2016 Bar Bulletin. 

On stands now!

Marks Gray Shareholder and the Jacksonville
Bar Association President, Giselle Carson

Monday, April 4, 12:33 PM EDT

By Giselle Carson, The Jacksonville Bar Association president

In 1848, primarily through the giving of Joshua Bates, a Bostonian merchant and banker, the Boston Public Library was founded. This is the oldest free public city library in the world and the first to allow its patrons to borrow books. Prior to its founding, libraries were opened only to a select few. The founding of the BPL transformed the lives of many who otherwise might not have had access to reading materials.

In 1851, a group of citizens led by retired Boston sea Capt. Thomas Valentine Sullivan noticed a need to create a safe gathering place for sailors and merchants, and founded the first YMCA in the U.S. They were inspired by the London YMCA, which was established in 1844. As a result, YMCAs continue to transform and improve the mind, body and spirit of individuals and families in communities across the country.

In 1897, a group of visionary attorneys formed The Jacksonville Bar Association to maintain the honor and dignity of our profession, regulate the practice and promote improvements in the law and its administration, and cultivate professional ethics and social ties among the members. Since its inception, the JBA has been positively transforming and making a meaningful difference for our members and community.

As I reflect on my tenure as president, one of my measures of success is how our organization continues to give back and positively impact our community and members.

Every day, our members donate their time, energy, expertise and money to make an impact, share expertise, learn new skills, strengthen our community, meet others and improve health.

Making an impact

Our Young Lawyers Section is all about making an impact. Under the leadership of Lindsay Tygart with Edwards & Ragatz, P.A., and Christian George with Akerman LLP, our YLS events are making a lasting difference in our community.

The charity golf tourney, poker tournament and Chili-Cook Off (chaired by Alexandria Hill with Gray Robinson) raised over $37,000, which was donated to the JT Townsend Foundation, K9s for Warriors and Community Connections.

Additionally, under the leadership of Amanda Thomas with Driver, McAfee, Peek & Hawthorne, P.L., Michael Lockamy with the Bedell Firm and Ryan Hyde with Thames, Markey & Heekin, P.A., the YLS, in partnership with the Jacksonville Zoo and Gardens, hosted its Holidays in January and donated 20 bicycles and other gifts to children identified by Family Support Services.

These are just a few examples of how our YLS is transforming our community.

Sharing expertise

We all have skills that can benefit others. Our Pro Bono Committee, under the leadership of Kathy Para with Jacksonville Area Legal Aid and Laura Boeckman with the Office of the Attorney General, has conducted more than 10 Ask-A-Lawyer and Advance Directive for Seniors events, where 15 to 50 residents are helped at each meeting. Our members share their time and expertise at Saturday clinics with community members to help draft estate planning documents and answer questions relating to contracts, family law, foreclosure, employment, probate and other areas of law.

Learning new skills

Interested in learning what it takes for a U.S. legal permanent resident to become a U.S. citizen? Why not volunteer for the Law Day Committee’s Citizenship Day? Our Law Day Committee, under the leadership of Emily O’Leary with Foley & Lardner LLP and John Wallace with Moseley, Prichard, Parrish, Knight & Jones, have many outstanding Law Day celebratory events, including Citizenship Day, a swearing-in ceremony for new U.S. citizens, a poster contest with students from local elementary schools and an art supply and toiletries drive to benefit local schools and Downtown Ecumenical Services.

At Citizenship Day on April 9, more than 100 legal immigrants will receive assistance with completing the U.S. Naturalization Application. Several pro bono attorneys, paralegals and law students will work as teams in shifts to bring this amazing event to life. It is not too late to participate in Citizenship Day — contact Kathy Para for information on getting involved.

Strengthening our community

Under the leadership of Shea Moser with Moseley, Prichard, Parrish, Knight & Jones and Tony Zebouni with Regan, Whelan, Zebouni & Atwood, our Community Outreach section is making our community stronger, healthier and happier. Last December, our Senior Holiday Project Committee, under the leadership of Alessandro Apolito with Brennan, Manna & Diamond, LLC, and John C.W. Cherneski with Milam, Howard, Nicandri, Dees & Gillam, P.A., and in collaboration with Meals On Wheels and the Jacksonville Sheriff’s Office, granted the holiday wishes of about 400 seniors. These citizens benefited from our members’ donations of blankets, clothing, food, and even more important — cheerful and warm visits during the holiday season.

On April 28, under the leadership of Cyndy Trimmer with Ansbacher Law, Megan Kelberman with Gunster and Jessica Mathis with Wicker, Smith, O’Hara, McCoy & Ford P.A., the eighth annual celebration of Rendezvous on the River will take place.

This is the fifth consecutive year the proceeds from this event will benefit Dreams Come True, a local charity. As in years past, the event will raise money to bring hope and joy to one First Coast child battling a life-threatening illness.

Sponsorship opportunities are still available for Rendezvous on the River.

If you are looking to give a donation and/or would like to help give back to a worthwhile cause, we urge you to consider donating to this event.

You may contribute by contacting Cyndy, Megan, Jessica or the JBA.

Meeting others

Looking to broaden your network? Giving back and being engaged, even if electronically, is a great way to connect with others. During the fall, the JBA launched our Social Media Campaign, which was coordinated by our very own JBA staff, Carla Ortiz-Ramos and Julia McCormack, to promote the electronic connections of our members. As a result, over $5,000 was presented by the JBA to JALA to raise awareness of both organizations.

Improving health

I could not speak about transforming lives and giving back, and not speak about its beneficial impact on health. Research shows that doing something positive for others stimulates the release of endorphins. Many people report a “high” from volunteering, similar to the positive feeling that results from exercise. Volunteering is not only an excellent way to help others feel better, but it makes us physically healthier, lowers our stress and helps us live happier more fulfilled lives.

I am especially thankful to Alison H. Sausaman with Marks Gray, P.A. and County Judge Eleni Derke for giving their time and energy to improve the health and serenity of our members through our Tuesday Walk and Talk events held every other week at 5:30 p.m. and Yoga for Legal Warriors. I hear the last Yoga for Legal Warriors created a very positive buzz in the Duval County Courthouse. I hope to see many of you at our next session on April 29.

I am grateful and thankful for our sections, committees and individual members that, much like the visionaries who founded the BPL and YMCA, work tirelessly to make an impact and transform lives in our community every day.

Giselle Carson is president of The Jacksonville Bar Association and an attorney at Marks Gray.

Shareholder Jill F. Bechtold authors article in Litigation 360 on Medmarc.com

Case Resolution Strategies for Products Liability Cases 

Jill F. Bechtold

Original article published on Litigation 360 on www.Medmarc.com on Thursday, March 31, 2016

Case Resolution Strategies

By Cynthia Day Grimes and Jill F. Bechtold

​

When products liability claims arise, we often conceive of the options for resolving them as binary—either settle the claim or, should settlement not be reached, litigate it in a trial. The notion of settlement and litigation as the only two options for claim resolution is outmoded, however, and alternative dispute resolution (ADR) techniques are becoming increasingly common as means of effectively resolving claims. These alternatives—principally mediation and arbitration, on which this article will focus—offer the opportunity for a more robust presentation of evidence and structured negotiation than settlement but constrain costs and can be completed on an accelerated timeline compared to litigation. For these reasons, mediation and arbitration can be very desirable means of resolving products liability claims.

Below, two seasoned products liability defense attorneys—Cynthia Day Grimes (Strasburger & Price) on mediation and Jill F. Bechtold (Marks Gray) on arbitration—describe the two proceedings and provide their best tips for making the most out of each. 

Mediation

Mediation is the more informal of the two chief ADR proceedings.¹  In mediation, a neutral third party—typically a trained mediator—presides over and facilitates discussions between the plaintiff and defendant. Though informal compared to trial proceedings, mediation does have a structure and timeline that distinguishes it from usual negotiation.

Mediation is widely accepted and currently a precursor to all trials in most jurisdictions. This is beneficial to both the defendants and the plaintiffs. Each of the parties has a lot to lose in proceeding full speed ahead to trial instead of seeking possible resolution early on.  Keep in mind that in proceeding to trial, the medical product company must have a knowledgeable and jury-appealing representative of the company present for the entire trial which usually requires 8 hours a day, 5 days a week, for at least a couple of weeks.  The representative needs to be “present” in the court room and not distracted by other matters (i.e., no smart phones or computers in use to keep up with work back at the office).  Additionally, depending on the allegations, a good defense will often require high-level representatives from marketing, design and compliance.  These witnesses will not only need to be ready to dedicate several full days to testimony, but they need to undergo several days of preparation with the lawyers even after they have already given their depositions in the case.

With respect to the plaintiff’s side, the expenses to bring qualified experts in several fields against the product manufacturer and health care providers can be as high as $15,000 to $20,000 for each expert plus the travel expenses.  Both defense and plaintiffs face these expenses.

In view of these expenses and “costs” of time and disruption to the business parties, in one-off cases (where there is no class action or multiple cases as to the product), the wise position on each side is to reach a mutually acceptable resolution before the expenses and hard-held positions prevent resolution desired because of the practical and expense considerations.

Keys to Successful Mediation

Being mindful of its advantages, here are some keys to making mediation successful and thereby avoiding a lengthy and expensive trial. 

1. Time the mediation carefully.  Schedule the mediation after you and your counsel have enough information to properly evaluate the case; however, consider that mediation has the best chance for success when it commences before each side is entrenched in their own positions.  Also consider that you want to schedule it before the defendant has incurred too much expense or experienced too much disruption of its business as a result of obtrusive discovery and depositions.  Likewise, it’s best to attempt mediation before the plaintiff has incurred too much expense from conferring with experts.


2. Be wary of plaintiffs’ fear tactics. The presence of a representative of the defendant at mediation often helps to resolve significant cases, but plaintiffs’ demands that “the person attending the mediation must have absolute, autonomous authority to settle for the amount demanded” are inappropriate.  In this situation, the employee who represents the defendant at mediation may be vulnerable to “fear” tactics.  Some counsel may resort to statements such as “you will face job consequences in the event of a large verdict,” which are an attempt to intimidate and force settlements not supported by the facts and law.


3. Be patient with the process.  There is much “dead time” during mediations.  Patience is a supreme virtue, with listening skills as a close second.  Use the time to establish relationships with the mediator and your attorney.

Arbitration

Though it is similar to mediation in many ways, arbitration is more formal than its counterpart and has two significant distinctions: (1) in most cases, the result is binding upon the parties; and (2) whereas the role of the mediator is to facilitate compromise and discussion among the parties, the adjudicator that presides over arbitration is mostly removed from settlement discussions and, instead, merely issues a determination of liability and damages.

Arbitration became the preferred method of case resolution in the early 2000s. When parties agree to arbitration, they generally give up all rights to a jury trial.  Many companies agree that arbitrations reduce the amount of large verdicts, costly discovery and lengthy trials.  The results have been beneficial, but there are still some companies that question the cost savings and benefits of arbitration versus other methods of case resolution.

In most cases, arbitration is established contractually by placing arbitration provisions in sales contracts. The parties both agree to pursue any claims in arbitration in lieu of a jury trial. The provision usually selects the type of arbitration that the company prefers and the place where the arbitration will be held. These types of provisions are generally upheld and enforceable by the courts.

There are multiple types of arbitrations, with the most common form being under the rules of the American Arbitration Association (“AAA”). The AAA is a national organization that established a set of rules and procedures for arbitrations. The benefit of using the AAA system is that the AAA assigns experienced arbitrators to each case and the rules are uniform across the country. One important aspect of the AAA is the significant costs associated with filing a complaint.  The initial cost to file can be in excess of $25,000.00, as compared to a few hundred dollars to file a civil complaint in state court. Many commentators believe that this increased cost deters potential plaintiffs from filing lawsuits, thereby decreasing potential litigation. Most of the arbitrations conducted under the AAA are binding, meaning that the judgment is final and can only be challenged in very narrow circumstances.

In addition to the private AAA structure, there are also state and federal arbitration forums. In 1925, Congress passed the Federal Arbitration Act, which allows companies to participate in arbitration when the transactions crossed interstate lines. The FAA Code provides a specific set of arbitration rules and the filing fee is less costly than the AAA. The results of the FAA are also binding and the outcome can later be enforced as a judgment against the losing party.  Many states also now provide a specific statutory scheme for conducting arbitrations. For example, Florida enacted the Florida Arbitration Code that governs in state transactions. These arbitrations are also binding and are conducted in accordance with the specific state rules.

By far the largest benefit of arbitrations for any company is the elimination of the jury trial. Juries nationwide are unpredictable and can lead to outrageous, excess verdicts against companies. Arbitration takes cases out of the hands of inexperienced juries and instead allows educated and knowledgeable arbitrators to resolve the issues. Those opposed to this system argue that the arbitrators unfairly benefit companies more than individual plaintiffs since the arbitrators make their money from multiple cases. A company will be more likely to use an arbitrator again if the outcomes are favorable, leading to an economic incentive for the arbitrator to find in favor of companies in each case.  Whether this is correct or not, many companies have chosen to continue using the arbitration scheme simply to keep juries out of the litigation.

In addition to the benefits of a non-jury resolution, discovery is generally less time consuming and costly in arbitrations. In most cases, discovery is narrowed to include written discovery and possibly limited depositions of main witnesses.  Many states do not even allow for interrogatories or depositions at all prior to the arbitration. This significantly reduces the amount of legal fees expensed by lawyers in a case but can also limit the amount of information that counsel will have in preparation to defend a matter. Further, the rules of evidence are generally more relaxed at arbitrations. This prevents delay and legal tactics by counsel. While it can take several years to conduct a trial in civil court, most arbitrations are conducted in less than one year.  Arbitrations are also usually conducted in significantly less time than jury trials, thereby reducing legal fees further.

Finally, most arbitration results are binding and difficult to challenge on appeal in civil court. Depending on the type of arbitration selected, most arbitration awards can only be challenged when there are significant findings of unfairness in the proceeding or by the arbitrator.  Some examples include when an award is procured by fraud, undue means, or corruption, or when there has been evidence of bias by the arbitrator.  Unlike a jury trial, a losing party is much less likely to successfully file an appeal of an award. This makes decisions of the arbitrators more definite and final for a company moving forward and reduces post-resolution appellate legal fees. However, in some circumstances, an unfavorable verdict against a company could be detrimental if not appealable.

Overall, the use of arbitrations is still on the rise by companies. Companies recognize that although arbitrations can have multiple downsides, including binding outcomes and less access to discovery tools, the benefit of protecting themselves against possible runaway jury verdicts remains supreme. Arbitration provisions continue to be used in contracts for the sale of goods and continue to remain enforceable by law. Arbitrations will continue to be a tool for companies in future.

Keys to Successful Arbitration

If your company elects to use the arbitration method, the following are some key considerations for a successful outcome:

1. Contract for arbitration.  Review all your existing contracts and make sure they contain an arbitration provision. Most companies will never agree to arbitrate after an issue arises. A best practice is to ensure that contracts are already in place that require arbitration prior to litigation occurring.


2. Specify your forum.  Ensure any provision to arbitrate specifically identifies how and where an arbitration proceeding would occur. Specifically, the provision should state the forum or rules that will apply (e.g.,FAA, state statutes or AAA) and identify the city where the arbitration will be held. Most companies prefer that the arbitration occur at their place of business to reduce costs and expenses of travel later.


3. Ask for costs.  Make sure the arbitration provision also specifically identifies the damages that may be awarded. For most companies, an arbitration provision will include an award of attorney’s fees and costs to the prevailing party as well as payment of all arbitrator fees and the cost of arbitration. Specifically outlining possible damages can sometimes serve to deter claimants from filing a case and helps the company to assess their potential exposure moving forward.


4. Control your documents.  As with any anticipated litigation, make sure all document evidence regarding the issue is preserved. Alert all necessary personnel, including IT employees, to properly protect and maintain important records for future use at arbitration.


5. Use an expert.  Retain a defense attorney with knowledge and experience in arbitrations. These specific attorneys will know how to best preserve the narrow appellate issues and how to navigate these cases effectively despite having limited discovery opportunities in your case.


6. Maintain confidentiality.  Keep all disclosures regarding the litigation in confidence. Unlike open trial courts, most arbitrations are private and not open to the public. Refrain from publicizing the litigation and help to keep the procedure as confidential as possible.

Conclusion

All methods of ADR should be considered as a possible means of resolving claims. Often, mediation and arbitration can provide more palatable results than mere negotiation or litigation and can usually do so at significantly less time and cost than a trial imposes.  

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¹It should be noted that, though the most popular, mediation and arbitration are only two forms of alternative dispute resolution (ADR), and ADR also refers to neutral evaluation, negotiation, and conciliation.