May 2017 E-Bulletin for Arbitrators

This month's E-Bulletin topics include:

  1. A "Prima Facie" Case — How Much Evidence Is Enough?
  2. Training Opportunities
  3. Liability Admissions and Prior Payments
  4. Member Feedback... Thank You, Arbitrators!

A "Prima Facie" Case — How Much Evidence Is Enough?

As an intercompany arbitrator, you know there are no default judgments in intercompany arbitration (Rule 4-1). The filing company does not prevail simply because the responding company did not submit an answer. The filing company still must prove its case.

Further, there are no formal rules of evidence (as is in litigation). All evidence is to be considered and given "weight" based on its relevancy and credibility to all the other evidence presented at the hearing. If the filing company's evidence proves liability and/or damages, the Applicant has proven a "prima facie" or "minimum standard" case.

Woman reading in front of a pile of filesRemember, the burden of proof in intercompany arbitration is "preponderance of the evidence" (civil matters) not the threshold of "beyond a reasonable doubt" (criminal matters). This simply means that the Applicant does not need to provide indisputable proof, i.e., the only possible explanation of what happened, but only needs to show that its factual explanation is more likely true than any other alternative explanations. It also means that all possible alternative explanations need not be specifically ruled out for the Applicant to prevail. Many cases are decided within the confines of circumstantial evidence so, when appropriate, remember it is the totality of the circumstantial evidence that matters and whether that proves or does not prove a party's contention. Also, please note that hearsay evidence can be accepted in arbitration. It can be the reliability of the hearsay that the arbitrator needs to address.

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Training Opportunities

Sign up written in a notebookWhether you are hearing your first case or want a refresher course, AF's interactive, instructor-led Webinars offer valuable information on evaluating cases and writing decisions.

Courses offered include:

  • Beginner's Course for New Arbitrators
  • Intermediate Arbitration for Arbitrators
  • Writing Quality Decisions
  • Writing Quality Decisions — Damage Disputes
  • Writing Quality Decisions — Special Arbitration

Sign up today on the AF website!

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Liability Admissions and Prior Payments

Hearing cases wherein both liability and damages are disputed are straight forward and typically cause no problems. You decide liability first. Damages may not be an issue if the Applicant fails to prove liability or the loss state's negligence law bars recovery. But how do you render a decision when liability isn't specifically admitted and an alternative theory isn't offered either?

Scenario 1: The Respondent enters an amount in the "% Liability Admitted" field.

Obviously, if the Respondent enters "100%," liability is admitted. and no further consideration regarding liability is needed.

If the Respondent admits partial liability, you cannot find it less responsible than the amount admitted. For example, if the Respondent enters 75% in the "% Liability Admitted" field, your liability decision must be equal to or greater than 75%.

Example Scenario Document 1

Scenario 2: The Respondent leaves the "% Liability Admitted" field at 0%, acknowledges a prior payment has been made to the Applicant, states that the Applicant has the burden to prove liability (but offers no alternative liability position), and disputes the unpaid amount of damages.

If the Applicant includes liability arguments regarding the loss in its contentions, enter the breach(es) of duty in the "based on" box of the liability decision. You will continue to hear the damage dispute.

If the Applicant does not include liability arguments in its contentions or you are unable to determine a breach of duty, your liability decision entry can be something like, "(Respondent company) has not made a specific and supported challenge to liability." You will continue to hear the damage dispute.

Scenario Document Example 2

Scenario 3: The Respondent leaves the "% Liability Admitted" field at 0% and notes something like "This is a damage dispute" or "See Damage Dispute" in the contentions area (its damage dispute is appropriately argued in the disputed damages section).

It is clear the sole issue in dispute is damages, even though the "% Liability Admitted" field was left blank. As noted above, enter the breach of duty in the liability decision field if you are able to identify one. If not, it is acceptable to enter "Liability not disputed."

Example Scenario 1

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Member Feedback... Thank You, Arbitrators!

Thank you very much graphicThe following is recent member feedback on decisions. Kudos to all on providing the high-quality decisions our membership values and appreciates.

"It was a complex claim with a lot of separate issues, and I thought the arbitrator's comments were very knowledgeable."
Thank you, Arbitrator Duly Zwiefel!

"The case was well-reviewed, and I understood why she came to her decision. It was a smooth process."
Thank you, Arbitrator Michelle Mueller!

"She looked at all of the facts that were presented on both sides and made the right decision on the file."
Thank you, Arbitrator Elizabeth Ohlson!

"Her comments suggested that she paid equal attention to both arguments, considered the loss, and applied it appropriately."
Thank you, Arbitrator Jean Fazzino!

"It was not a simple case. However, you could tell she looked closely at all the evidence provided and made a reasonable decision."
Thank you, Arbitrator Robin Tyra!

"The level of detail that was included in the decision was excellent."
Thank you, Arbitrator Richard Beasley!

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