DEFINITIONS
October 15, 2004
The following definitions are general in nature and are to be used only in relation to the clarification of certain words or terms that are used in the information, forms and documents that appear on the CDRS website and in the CDRS Rules and Procedures. Many of the legal documents, forms and agreements that you have already signed may contain their own definitions as to the language they contain and should be used in conjunction with those documents according to the rules and procedures of the dispute resolution proceeding.
ADJUDICATION: The legal process of resolving a dispute; the process of judicially deciding a case.
ARBITRATION: A method of dispute resolution involving one or more neutral third parties who conduct an arbitration hearing, according to specified rules and procedures, to determine who is right and who is wrong on selected issues and whose decision in either binding or non-binding. Binding arbitration is a method of dispute resolution where an arbitrator or panel of arbitrators conducts a hearing for the purpose of deciding which party or parties are to receive an award that is binding on all of the parties. Non-binding arbitration is a method of dispute resolution where an arbitrator or panel of arbitrators conducts a hearing for the purpose of deciding which party or parties are to receive an award that is non-binding on all of the parties.
ARBITRATION ACT: Any state or federal statute that governs the arbitration process that may be followed in the jurisdiction in which the arbitration shall be conducted if the applicable contract specifying the arbitration doesn’t state specific rules or statutes to be followed.
ARBITRATION CLAUSE: A contractual provision of a contract, agreement or other document that specifies binding arbitration, non-binding arbitration or med-arb as the dispute mechanism to settle any dispute relating to the contract, addendums to the contract, change orders or any other change to the primary contract.
ARBITRATION DEMAND: (Demand for Arbitration) is a written notice by one party to another party of the first party’s intent to initiate the arbitration process.
ARBITRATOR: A neutral person who conducts an arbitration proceeding or participates on a panel of neutral persons who conduct a tripartite panel arbitration proceeding. An advocacy or selected arbitrator may represent one of the parties on a tripartite panel and may not be considered a neutral.
AWARD: The final decision of the arbitrator(s) at the conclusion of an arbitration hearing. Most arbitration awards are rendered within 30 days after the conclusion of the arbitration hearing.
CASE-IN-CHIEF: The part of an arbitration hearing when a party presents evidence to support its claim or defense.
CIRCUMSTANTIAL EVIDENCE: Evidence based on inference and not on personal knowledge or observation that does not directly prove a fact but gives rise to a presumption that a fact does exist.
CLAIM: A request for a remedy to a given situation including but not limited to: a request for payment, a request for the correction of a construction defect(s), an interpretation of the provision(s) of a construction contract or related documents, a release from the provisions of a construction contract, a request for damages, a request for equitable remedy for breach of performance, a claim for the recovery of specific personal property wrongfully taken or detained and other related issues for which a party feels they have a claim.
CLAIMANT: The primary party in an arbitration who brings charges against another party (the respondent) and initiates the arbitration process; the one who asserts their right or demand for arbitration.
COUNTERCLAIM: A claim for relief asserted against an opposing party (claimant) after an original claim has been made; a defendant’s (respondent’s) claim in opposition to or as a setoff against the claimant’s original claim.
DECLARANT: A person who has made a statement or signed a declaration of a statement.
DEPOSITION: Testimony of a witness that is reduced to writing and taken prior to an arbitration hearing. It is admissible during the arbitration hearing as if the witness was present. It must be pre-authorized by the arbitrator.
DISCLOSURE: The act or process whereby the arbitrator makes known to all parties, their attorneys and/or their representatives, any pertinent information concerning any previous relationships or interests that the arbitrator may have that could potentially affect the neutrality of that arbitrator. This obligation to disclose pertinent interests or relationships is a continuing duty of the arbitrator during the entire arbitration process.
DISCOVERY: The process of looking for information that is either previously known or unknown. Discovery usually involves but is not limited to the following procedures: admission of documents or plans, interrogatories, witness or specialist testimony, depositions, and other requests for the introduction of relevant information, documents or materials.
EXHIBITS: Tangible objects, documents, photographs, audiotapes and videotapes, and other items offered for the arbitrator’s consideration. In an arbitration hearing, the exhibits enhance or supplement the testimony of the parties, their attorneys or their representatives or witnesses or specialists.
EX PARTE COMMUNICATION: A generally prohibited communication between a party and/or their attorney or representative and the arbitrator when the opposing party, their attorney and/or their representative is not participating in the communication. Ex parte (private) communications are usually only allowed concerning administrative or procedural matters.
FINAL ARGUMENT: (also known as the closing argument) At the end of the arbitration process, it is the party’s only opportunity to tell the case story in its entirety, without interruption, free from most constraining formalities, delivered in their own words, using their organizational, analytical, interpretive and other skills for the express purpose of persuading the arbitrator in the merits of their case.
HEARSAY: A statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted.
INTERROGATORY: A discovery technique where a written question or questions are submitted to the opposing party for the purpose of disclosing relevant information to the arbitration.
ISSUANCE: The dissemination of an official document to a mediation or an arbitration.
JOINDER OF PARTIES: It may become apparent during the pre-hearing conference, or at other times, that other parties may need to be notified of the arbitration and of their opportunity for voluntary addition as parties. They may need to be joined as additional parties because of the existence of multiple arbitration clauses making them named parties to the dispute.
MEDIATION: A method of dispute resolution where a neutral person facilitates discussions between the parties in an attempt to get the parties to reach an agreement that is mutually agreeable to the parties. Binding mediation is a method of dispute resolution where a neutral person facilitates discussions between the parties in an attempt to get the parties to reach an agreement that is mutually agreeable to the parties and after the mediation has reached settlement on as many items that is possible through the mediation process, any unresolved items are then left to the mediator to render a decision that will settle those unresolved items. In binding mediation, the decision of the mediator is binding upon the parties and is added to the final Settlement Agreement that is executed and signed by all of the parties to the mediation.
MED-ARB: A method of dispute resolution that is a combination of mediation and binding arbitration. The process begins with mediation and any unresolved items that remain at the end of the mediation, according to the pre-negotiated med-arb agreement, are then put into the hands of the same mediator to act as an arbitrator or the unresolved items are put into the hands of a new arbitrator who will conduct an arbitration and render a final binding decision and award on those remaining unresolved items.
OPENING STATEMENT: The party’s first opportunity to help the arbitrator understand the evidence that you are about to present and helps to identify issues for the arbitrator while his/her mind is still fresh and uncluttered by volumes of evidence. It also alerts the arbitrator to questions of fact and law that the arbitrator will need to understand prior to rendering an award.
PARTIES: Any individual, company, or entity involved as the primary participants in the arbitration and their attorneys or other representatives.
PLEADING: A formal document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials, or defenses.
POST-HEARING BRIEF: A summation of the final arguments of each party in lieu of or in addition to closing arguments. Usually requested by an arbitrator if it is not completely clear, even from the counsel’s oral arguments, whether there is sufficient evidence to sustain particular elements of claims or defenses. Post-hearing briefs may add time to the rendering of the award by the arbitrator.
PRE-HEARING BRIEF: (also known as pre-hearing position statements and opening briefs) A short memorandum, usually five to ten double-spaced pages in the average case, which succinctly apprizes the arbitrator of the significant facts, separate claims, contentions, supporting law and other relevant issues concerning the arbitration issues. This brief is usually filed from a few days to a few weeks prior to the arbitration hearing, at the direction of the arbitrator.
PREHEARING CONFERENCE: (also called the preliminary hearing) A hearing or conference between all of the parties and their attorneys or their representatives to discuss the procedural and substantive matters of the upcoming arbitration hearing. Cases that require little or no discovery and a small amount of dollars would probably not warrant the scheduling of a pre-hearing conference. This conference may be conducted as a conference call on the telephone at the discretion of the arbitrator.
REBUTTAL: The time given to the respondent to present contradictory evidence or arguments in response to the claimant’s opening statement. (see Surrebuttal)
RENDER: To transmit or deliver a decision related to an arbitration, binding mediation or med-arb, by the mediator or arbitrator..
RESPONDENT: The party in an arbitration who is the defending party to the original charges from another party (the claimant).
STIPULATION: A material condition or requirement in an agreement, construction contract or other document that specifies a required condition, requirement or procedure to be followed.
SUBCONTRACTOR: One who is awarded a portion of an existing contract by a general contractor. A sub-subcontractor is one who is awarded a portion of an existing subcontractor's contract by a subcontractor.
SUBPOENA: A writ commanding a person to appear before an arbitration hearing to give testimony with or without required documents, subject to a penalty for failing to comply.
SURREBUTTAL: The response by the claimant to the respondent’s rebuttal of the claimant’s opening statement. (a rebuttal to a rebuttal)
TRANSCRIPT: A handwritten, printed, or typed copy of testimony given orally at an arbitration hearing that can become the official record of the arbitration proceeding, as taken by a stenographer or court reporter with the permission of the arbitrator.
TRIPARTITE PANEL: A panel of three arbitrators who together conduct an arbitration and render a binding or non-binding award.
VACATE: To nullify or cancel; make void; invalidate.
WARRANTY: An express or implied promise that something in furtherance of the contract is guaranteed by one of the contracting parties or their representatives.
Most of the definitions were taken or paraphrased from the “Black’s Law Dictionary” Second Pocket Edition.