Why are there no public arbitration proceedings? Despite the ubiquity of binding arbitration clauses in consumer contracts, I am unable to find a single example of an actual consumer arbitration proceeding (emails, exhibits, hearing, etc.). This is in contrast to litigation, where millions of dockets are available via PACER. This is surprising as the American Arbitration Association consumer rules do not impose any sort of confidentiality restrictions on the consumer. What explains the lack of public arbitration proceedings?
Because they are private Not private in the sense of confidential, although many are confidential (if agreed by the parties) and the arbitrator is always under a duty of confidence. Rather, private in the sense that they are conducted by private people and organisations who have no obligation to publish or publicise the results. Since most people pay on the decision, most arbitrations never go near a public court and therefore never get published.
You reach a settlement instead of a judge deciding a court case if both sides agree that a settlement is better for them than paying court costs, lawyers cost, the risk of losing, having embarrassing details published, distraction for a business, waste of time, and the stress of a court case. If the plaintiff wants to be able to publish details of the case, there is a lot less reason for the defendant to enter a settlement agreement. You complain that third parties miss out on possible information. That’s exactly why it isn’t there, because the defendant doesn’t want it to be there. The defendant might offer “I’ll give you $ 1,000 if you agree not to say a word about the case.” If the plaintiff says “I want $ 1,000 and tell the world about what happened”, then the defendant will likely say “take our offer, or take us to court and our lawyers will do their best so you get nothing”. The defendant will just not offer the kind of settlement you are looking for. And the plaintiff will do what is best for them, not what is best for anyone else. You have to remember that a settlement cannot be forced upon both sides, it must be something that both sides agree on. It's easiest to agree if you give the other side what they want if it doesn't cost you much, and then get things that you value more in return. As a plaintiff, not telling the world about the case is something that costs me nothing, but may have high value for the defendent. On the other hand, I value cash from the defendent a lot, while the defendent may be rich and can easily afford it. Because both sides have to agree, the terms are likely to incorporate something that both sides want.
Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can &quot;plead the 5th&quot;. There is a tiny exception for civil cases, where they can do so there too.
Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may rule "from the bench," announcing a decision and entering an order for the parties to comply, and then follow up with a written order later. The research process is fairly open-ended, but legal research databases are pretty advanced, and a good researcher can generally get his hands on the vast majority of what he'll need in very short order. But practically speaking, there are few limits on how long that process takes. A litigant who was growing impatient could seek a writ of procedendo to force a court to move faster, but my experience indicates that most attorneys wouldn't attempt that move unless a decision had been pending for at least a year with no action, which would be unusual.
Judicial estoppel prevents a party from arguing two opposite positions in separate proceedings. Is there a similar doctrine that applies to argumentation in the same brief? No. The general rule is that a party is permitted to argue inconsistent positions in the alternative within a brief. When a party does so without expressly saying so, it is assumed that they are arguing in the alternative unless the party clearly indicates otherwise (and is just being illogical). But the law in the context of arbitration is a special case that doesn't align perfectly with the general rule, and makes different distinctions sometimes. Under the substantive law of arbitration clause validity, sometimes a party can be forced to arbitrate even if there is a possibility that the underlying contract is unenforceable, with the arbitrator making that decision. But, a party cannot be forced to arbitrate in every case where the validity of the underlying alleged agreement is in doubt, simply because an agreement, on its face, contains or references an arbitration agreement. Under the Federal Arbitration Act, certain preliminary decisions are vested in the courts even if a written arbitration purports to provide otherwise, if a party choses to raise those issues. A dispute over which of two significantly different competing arbitration agreements applies to an issue between the parties could be such a circumstance. Thus, a term that provides that &quot;delegates threshold questions such as the 'applicability, existence, scope, or validity' of the agreement to the arbitrator,&quot; is partially void as a matter of public policy under the Federal Arbitration Act, although some of its retains its validity. For example, you can't delegate the question of the existence of an arbitration agreement to an arbitrator if that question is disputed, even if the contract says otherwise. In arbitration cases, there is a rather elaborate jurisprudence governing what issues are for a court to decided and what are for an arbitrator to decision when the right of a party to arbitrate, and/or the validity of the underlying contract, are disputed, that makes some very fine distinctions between different kinds of arguments. For example, if a party claims that he never had dealings with a party that presents an unsigned document that is a contract and also asserts that this party is bound to an arbitration agreement, that question can be decided by a court. But, if a party signed an agreement with a plain vanilla arbitration clause but claims it is unenforceable because it was induced by duress or undue influence, the arbitration will usually go forward with the arbitrator deciding the validity of the contract. When a decision is decided by a court, or by an arbitrator, is not easily summarized or manifestly obvious without a review of the relevant case law which is voluminous and intricate. See, e.g., Samson v. NAMA Holdings, LLC, 637 F.3d 915, 923 (9th Cir. 2011); Santich v. VGG Holding Corp., 2019 CO 67 ¶ 6 (June 24, 2019); N.A. Rugby Union, LLC v. U.S. of Am. Rugby Football Union 2019 CO 59, ¶¶ 20-22, 442 P.3d 859, 863-864 (June 17, 2019);;;
Choice of law A contract can include a choice of law clause that states the laws that apply to the contract. For the USA this would usually be the laws of a particular state. Most courts in most jurisdictions respect the choice of law clause - that is, if say a suit is brought in a new-south-wales court on a contract with a choice of law of californina, the court will (probably) apply Californian law to the contract. However, a choice of law clause does not affect non-contract law like torts, equity, criminal law, consumer protection law, and &quot;no contracting out&quot; laws. So, for the above example, while the contract will be interpreted using California/USA law, other claims will be assessed under New South Wales/Australian law. For an example of how this works in practice, see ACCC v Valve Software. It was never in doubt that the contract was under Washington, USA law, however, the &quot;no refund&quot; term, while valid in Washington violated Australian Law and was unenforcable and, more critically for valve, was misleading and deceptive, costing them AUD 3 million in fines (plus legal costs). Choice of Forum In addition to specifying the relevant law, a contract can also suggest the appropriate forum: &quot;disputes shall be subject to the non-exclusive jurisdiction of Californian courts&quot;. A clause that oversteps the suggestion and states the forum categorically is likely to be void on public policy grounds: a contract cannot exclude courts that have jurisdiction. A choice of forum clause is one of the factors a court will consider if one of the parties petitions that it is the wrong forum and the case should be transferred to the right forum. They are influential but not determinative and go into the mix with all the other relevant factors. Arbitration A well-drafted binding arbitration agreement will almost always be effective if it complies with local law. Courts have a very strong bias in favour of enforcing arbitration clauses.
How are such no-show-no-tell boundaries established They largely stem from the rules of evidence which are complicated, vary from state to state and knowing which is a big part of what litigation attorneys are paid for. Parties to litigation become aware of all the evidence/topics that their counterparts wish to broach in the courtroom well in advance — during discovery. They will usually disagree whether some bits and pieces can be presented to the jury. In this case the court will hold admissibility hearings — again, well in advance before the trial. Despite all the preparations, some of these disagreements arise during the trial, and then they are resolved in place by way of voiced objections. The attorneys and the judge talk about them using professional jargon of the rules of evidence — having themselves seen all the evidence in advance. does the jury get to know them No, the jury doesn't need to follow the professional talk. In fact, they should hear as little as possible of it — which is the reason why admissibility disagreements are resolved in advance as much as possible. If serious issues arise during the trial, the judge will ask the attorneys to speak to them in chambers — away from the jury. Or they will ask the jury to take a break while the professionals talk. The jury just needs to listen to the evidence that is allowed in, and disregard any evidence the judge say they have to. is this also in the public record somehow? It is in the court record. It may be accessible to the public if the court allows. If someone wishes to see the record they need to apply to the court, provide reasons and a judge will decide if anything can be released.
A settlement can include whatever terms the parties agree on, short of terms prohibited by law. Usually one party gives up at lest some claims. Then other party nay also give up,claims, or make a payment, or both. There may be other terms as well, including confidentiality of the details. It is not uncommon for both parties to give up all claims against each other. Settlement agreements are legally binding on both parties. We cannot advise on what kind of settlement a particular person should take in a particular case. For tht, consult a lawyer.