LIST OF CHAPTERS VOLUME 1 INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION IN COLORADO INTRODUCTION TO COLORADO AND FEDERAL LAWS OF ARBITRATION

Transcription

1 LIST OF CHAPTERS VOLUME 1 Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION IN COLORADO INTRODUCTION TO COLORADO AND FEDERAL LAWS OF ARBITRATION LAWS, RULES, AND PROCEDURES GOVERNING ARBITRATION DOES STATE LAW, FEDERAL LAW, OR THE CONTRACT GOVERN THE ARBITRATION OR JUDICIAL PROCEEDINGS? AGREEMENTS TO ARBITRATE ARBITRATION OF PARTICULAR KINDS OF CLAIMS AND BETWEEN PARTICULAR ENTITIES ARBITRABILITY OF DISPUTES: THE ISSUES AND THE LAW ARBITRABILITY ISSUES: WHO DECIDES THEM? PROCEDURES TO STAY OR COMPEL ARBITRATION REPRESENTATION OF PARTIES BY ATTORNEYS AND NON-ATTORNEYS THE ARBITRATOR: QUALIFICATION, JURISDICTION, APPOINTMENT, DISCLOSURE, RESIGNATION, DISQUALIFICATION, IMMUNITY, AND ETHICS PLEADINGS, MOTIONS, FEES, AND DEFAULT THE PREHEARING ARBITRATION PROCESS PRE-AWARD RULINGS, INTERIM AND PROVISIONAL ORDERS, SANCTIONS AND ENFORCEMENT, AND JUDICIAL INVOLVEMENT IN THE ARBITRATION PROCESS THE ARBITRATION HEARING: PROCEDURES, WITNESSES, EVIDENCE, AND CLOSING THE ARBITRATION AWARD (3/17) TOC-1

2 Colorado and Federal Arbitration Law and Practice VOLUME 2 Chapter 17 Chapter 18 Chapter 19 Chapter 20 Chapter 21 Chapter 22 Chapter 23 Chapter 24 Chapter 25 Chapter 26 Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G POST-AWARD PROCEEDINGS BEFORE ARBITRATOR AND DISTRICT COURT: MODIFICATION/CORRECTION/VACATION OF THE AWARD THE ARBITRATION AWARD: CONFIRMATION, JUDGMENT, FEES, AND INTEREST JURISDICTION AND VENUE OF THE STATE AND FEDERAL DISTRICT COURTS AND OF THE ARBITRATOR APPEAL OF TRIAL COURT ORDERS AND JUDGMENTS ADR IN THE (COLORADO) STATE AND FEDERAL COURTS ADR IN THE STATE AND FEDERAL GOVERNMENTS, AGENCIES, AND SUBDIVISIONS INTERNATIONAL ARBITRATION* MEDIATION, SETTLEMENT AGREEMENTS, AND THE COLORADO DISPUTE RESOLUTION ACT OTHER ADR PROCEDURES PROCEDURES FOR FILING/PROSECUTING AND DEFENDING AN ARBITRATION COLORADO ARBITRATION AND MEDIATION STATUTES FEDERAL ARBITRATION STATUTES AMERICAN ARBITRATION ASSOCIATION RULES SAMPLING OF OTHER ADR ORGANIZATIONAL RULES ETHICAL RULES SAMPLE ARBITRATION PLEADINGS COMPARISON OF FEDERAL AND COLORADO ACTS SUBJECT INDEX TOC-2 (3/17)

3 TABLE OF CONTENTS VOLUME 1 Chapter 1 INTRODUCTION TO ALTERNATIVE DISPUTE RESOLUTION IN COLORADO 1.1 INTRODUCTION 1.2 WHAT IS ALTERNATIVE DISPUTE RESOLUTION? 1.3 SCOPE OF THIS BOOK 1.4 THE BENEFITS AND OBJECTIVES OF ADR 1.5 INTERNATIONAL ADR 1.6 COLORADO COURTS FAVOR ADR 1.7 FEDERAL COURTS FAVOR ADR 1.8 ADR PROVIDERS 1.9 BIBLIOGRAPHY Chapter 2 INTRODUCTION TO COLORADO AND FEDERAL LAWS OF ARBITRATION 2.1 INTRODUCTION What Is Arbitration? What Is Arbitration For Purposes Of The Arbitration Statutes? 2.2 A BRIEF HISTORY OF ARBITRATION 2.3 THE VARIOUS TYPES AND MEANINGS OF ARBITRATION Binding Versus Non-binding Arbitration Administered Versus Non-administered Arbitration Compulsory Versus Voluntary Arbitration International Arbitration 2.4 PUBLIC POLICY AND THE COMMON LAW OF ARBITRATION (3/17) TOC-3

4 Colorado and Federal Arbitration Law and Practice 2.5 SPECIALIZED STATUTES DEFINING, REQUIRING, LIMITING, AND PROMOTING ARBITRATION Colorado Statutes Federal Statutes 2.6 WHY ARBITRATION? 2.7 WHY NOT ARBITRATION? 2.8 ETHICAL REQUIREMENT TO ADVISE CLIENTS OF ADR 2.9 RECENT LEGISLATION INVOLVING ARBITRATION Recent Colorado Statutes Involving Arbitration Recent Federal Legislation Involving Arbitration Chapter 3 LAWS, RULES, AND PROCEDURES GOVERNING ARBITRATION 3.1 INTRODUCTION 3.2 THE GENERAL LAW, RULES, AND PROCEDURES OF ARBITRATION 3.3 THE AGREEMENT OF THE PARTIES TO ARBITRATE Incorporation Of Rules Of Arbitration Into The Agreement To Arbitrate Incorporation Of Rules And Law Of Trade Groups Incorporation Of Rules And Law Of Religious Organizations 3.4 COLORADO REVISED UNIFORM ARBITRATION ACT (CRUAA) What Is Arbitration To Which The CRUAA Applies? 3.5 COLORADO UNIFORM ARBITRATION ACT (CUAA) 3.6 COMPARISON BETWEEN CUAA AND CRUAA 3.7 FEDERAL ARBITRATION ACT (FAA) Applicability Of The Federal Rules Of Civil Procedure What Is Arbitration To Which The FAA Applies? The Goals And Objectives Of The FAA FAA Preemption TOC-4 (3/17)

5 Table of Contents 3.8 OTHER COLORADO STATUTES COMPELLING, LIMITING, AND REGULATING THE ARBITRATION PROCESS 3.9 OTHER FEDERAL STATUTES COMPELLING, LIMITING, AND REGULATING THE ARBITRATION PROCESS 3.10 COMMON LAW OF ARBITRATION Colorado Common Law Federal Common Law 3.11 THE ARBITRATOR S INHERENT POWERS 3.12 APPLICABILITY TO ARBITRATION OF PROCEDURAL-TYPE STATUTES AND RULES GOVERNING COURT PROCEEDINGS 3.13 APPLICABILITY OF SUBSTANTIVE LAW TO ARBITRATION 3.14 DIVISION OF RESPONSIBILITY BETWEEN COURT AND ARBITRATOR 3.15 BIBLIOGRAPHY Chapter 4 DOES STATE LAW, FEDERAL LAW, OR THE CONTRACT GOVERN THE ARBITRATION OR JUDICIAL PROCEEDINGS? 4.1 INTRODUCTION 4.2 APPLICABILITY OF COLORADO AND FEDERAL ARBITRATION LAW Applicability Of State (Colorado) Arbitration Law (CRUAA) Applicability Of The Federal Arbitration Act (FAA) Waiver Of Objection To Arbitration Law Applied Applicable Law In Federal Court When Jurisdiction Is Based On Diversity Of Citizenship Applicability Of State Law As To Validity Of Arbitration Agreement (Including Defenses) Governed By The FAA 4.3 PREEMPTION OF STATE ARBITRATION LAW (CRUAA) BY FEDERAL ARBITRATION LAW (FAA) The Doctrine Of FAA Preemption Of State Arbitration Law Expanding Scope Of FAA Preemption Of State Arbitration Law (3/17) TOC-5

6 Colorado and Federal Arbitration Law and Practice When Federal Arbitration Law (FAA) Preempts State Arbitration Law (CRUAA) FAA Preemption Of State Arbitration (CRUAA) Law In Federal Court Defining Arbitration FAA Preemption Of State Law Only As To Arbitration Agreements Subject To The FAA The Scope Of Federal (FAA) Preemption Of State (CRUAA) Arbitration Law FAA Preemption Of State Substantive Or Procedural Arbitration Law Summary: Which Sections Of The FAA (When The FAA Is Applicable) Preempt State Arbitration Law, And Which Do Not? FAA Preemption Of Specific Provisions Of State Arbitration Law FAA Preemption In The State Courts FAA Preemption In Class Action Arbitration Colorado Arbitration Law Exempt From Preemption Reverse Preemption Waiver Of Preemption 4.4 CHOICE-OF-LAW RULES: THE ARBITRATION LAW OF COLORADO, THE ARBITRATION LAW OF ANOTHER STATE, OR THE ARBITRATION LAW OF THE FAA 4.5 AGREEMENT OF THE PARTIES AS TO GOVERNING ARBITRATION LAW Agreement To The Applicability Of Part Of The FAA And Part Of The CRUAA General Choice-Of-Law Clauses As Defining Applicable Arbitration Law Choice-Of-Law Clause Versus Incorporation Of Rules Contract Versus Incorporated Rules 4.6 CONTRACTUAL AGREEMENTS AS TO APPLICABLE ARBITRATION LAW AS SUPERSEDING STATE OR FEDERAL ARBITRATION LAW OR FORUM S RULES 4.7 PREEMPTION OF ARBITRATION LAW APPLICABILITY IN STATE OR FEDERAL COURT 4.8 APPLICABILITY OF GENERAL LITIGATION RULES AND STATUTES TO ARBITRATION Applicability Of Colorado Statutes Governing Civil Actions Applicability Of The Federal Rules Of Civil Procedure TOC-6 (3/17)

7 Table of Contents Applicability Of Law As Governing The Arbitrator Application Of The Federal Arbitration Act In State Court Proceedings And Vice Versa 4.9 WHEN SHOULD THE LAW APPLIED IN ARBITRATION AND IN JUDICIAL PROCEEDINGS BE THE SAME? 4.10 APPLICABLE LAW IN JUDICIAL PROCEEDINGS CONCERNING THE ARBITRATION State District Court Proceedings CRUAA Applies State District Court Proceedings FAA Applies State Appellate Court Proceedings CRUAA Applies State Appellate Court Proceedings FAA Applies Federal District Court FAA Applies Federal District Court CRUAA Applies Federal Court Of Appeals FAA Applies Federal Court Of Appeals CRUAA Applies 4.11 BIBLIOGRAPHY Chapter 5 AGREEMENTS TO ARBITRATE 5.1 INTRODUCTION 5.2 REQUIREMENTS FOR AN AGREEMENT TO ARBITRATE FAA Requirements For Valid Arbitration Agreement CRUAA Requirements For A Valid Arbitration Agreement The Common Law Of Contracts Reasonable Costs Membership In Organization Whose Bylaws Provide For Arbitration Governing Law Who Is Bound By The Agreement To Arbitrate Non- Signatories Agreements Of Government Entities To Arbitrate 5.3 OPTIONAL TERMS FOR AN ARBITRATION AGREEMENT (3/17) TOC-7

8 Colorado and Federal Arbitration Law and Practice 5.4 VOID, VOIDABLE, AND UNENFORCEABLE PROVISIONS IN AN AGREEMENT TO ARBITRATE Terms That May Void An Arbitration Contract/Clause Class Action Waivers Clauses Imposing Limitations On Time For Commencing Arbitration That Are Shorter Than Statutory Time Limits Arbitration Of Nonarbitrable Claims Defenses To Enforcement Of Agreements To Arbitrate Clauses Potentially Voiding Arbitration Of Statutory Claims Provisions Undermining Federal Statutory Arbitration Policy 5.5 REMEDIES FOR ILLEGAL OR VOID PROVISIONS 5.6 OTHER SPECIFIC REQUIREMENTS FOR VALID ARBITRATION AGREEMENTS Health Care Availability Act Execution Of The Agreement/Power Of Attorney 5.7 INTERPRETATION OF THE AGREEMENT General Rules Applicable Law As To Interpretation Of Arbitration Agreements 5.8 SCOPE OF THE AGREEMENT TO ARBITRATE Retroactivity Of Arbitration Agreement 5.9 DEATH OF A PARTY: SURVIVAL UPON TERMINATION OF CONTRACT 5.10 LAW GOVERNING AGREEMENTS TO ARBITRATE 5.11 SPECIFIC TYPES OF ARBITRATION AGREEMENTS Electronic Agreements 5.12 DEFENSES TO THE VALIDITY OF ARBITRATION AGREEMENTS 5.13 DRAFTING THE ARBITRATION AGREEMENT AAA Form Provisions 5.14 BIBLIOGRAPHY TOC-8 (3/17)

9 Table of Contents Chapter 6 ARBITRATION OF PARTICULAR KINDS OF CLAIMS AND BETWEEN PARTICULAR ENTITIES 6.1 INTRODUCTION 6.2 ARBITRATION OF EMPLOYER-EMPLOYEE DISPUTES Under The Federal Arbitration Act Under The CRUAA Public Employees Private Employees 6.3 ARBITRATION OF CONSUMER DISPUTES 6.4 ARBITRATION OF STATUTORY CLAIMS GENERALLY 6.5 ARBITRATION OF SPECIFIC STATUTORY CLAIMS Securities Claims Sarbanes-Oxley Claims Colorado Consumer Protection Act Claims Magnuson-Moss Warranty Act Claims Uniformed Services Employment And Re-employment Rights Act Claims Claims Or Defenses Based On Regulatory Agency Rule-Making Concerning Arbitration Tenant Security Deposit Claims Credit Repair Organizations Act Claims Civil Rights Claims Dodd-Frank Claims Truth In Lending Act (15 U.S.C. 1601) Claims Age Discrimination In Employment Act (29 U.S.C. 623) Claims Racketeer Influenced Corrupt Organizations Act (RICO) (18 U.S.C. 1961) Claims Fair Labor Standards Act Claims Wage Claim Act Claims Defenses That Claimant Lacks Required License Statutory Contribution Claims Statutory Defenses To The Enforcement Of The Arbitration Agreement Other Statutes Prohibiting Or Limiting Arbitration Arbitration Of Employee Retirement Income Security Act Of 1974 (ERISA) (29 U.S.C. 1001, et seq.) Claims Uninsured Motorist Claims Railway Labor Act (45 U.S.C. 151, et seq.) Claims (3/17) TOC-9

10 Colorado and Federal Arbitration Law and Practice 6.6 ARBITRATION OF MECHANICS LIENS, MILLER ACT CLAIMS, AND FORECLOSURES Mechanics Liens Miller Act Claims Foreclosure Of Deeds Of Trust 6.7 ARBITRATION OF ANTITRUST CLAIMS 6.8 CLASS ACTION ARBITRATIONS U.S. Supreme Court Decisions On Class Action Arbitration Subsequent Lower Court Decisions Class Action Waivers Colorado State Law Decisions Collective Proceedings By An Association On Behalf Of Its Members Consolidating Claims Procedures For Class Action Allegations 6.9 ARBITRATIONS TO WHICH GOVERNMENTAL ENTITIES ARE A PARTY 6.10 ARBITRATION OF INDIAN CLAIMS 6.11 ARBITRATION OF CLAIMS IN BANKRUPTCY 6.12 ARBITRATION OF DOMESTIC RELATIONS ISSUES Arbitration Of Child Custody Issues 6.13 ARBITRATION OF DISPUTES BETWEEN ATTORNEY AND CLIENT 6.14 ARBITRATION OF TORT CLAIMS 6.15 ARBITRATION OF HEALTH CARE DISPUTES 6.16 FINRA ARBITRATION 6.17 BIBLIOGRAPHY TOC-10 (3/17)

11 Table of Contents Chapter 7 ARBITRABILITY OF DISPUTES: THE ISSUES AND THE LAW 7.1 INTRODUCTION 7.2 IS THERE AN AGREEMENT TO ARBITRATE? Law Determining Whether There Is An Agreement To Arbitrate Burden Of Proof And Rules Of Interpretation Battle Of The Forms Law Governing Definition Of Arbitration Procedure For Determining Whether There Is An Agreement To Arbitrate 7.3 IS THE AGREEMENT TO ARBITRATE BINDING UPON THE PARTIES TO THE DISPUTE? Non-signatories Subcontractors And Flow-Through Clauses Intertwined Defendants Validity Of Contract Arbitration Agreement In Membership Or Religious Organizations Agreement By Agent 7.4 DOES THE AGREEMENT CALL FOR ARBITRATION AS DEFINED WITHIN THE FEDERAL OR COLORADO ARBITRATION ACTS? 7.5 IS THE DISPUTE WITHIN THE SCOPE OF THE ARBITRATION AGREEMENT? Is There An Arbitrable Dispute? Scope Of An Arbitration Clause Generally Broad Versus Narrow Arbitration Clauses Miscellaneous Decisions On The Scope Of Arbitration Clauses Defining The Dispute 7.6 DEFENSES TO THE ENFORCEMENT OF THE AGREEMENT TO ARBITRATE Fraudulent Inducement Of The Contract Duress Mistake Forgery Illusory Waiver (3/17) TOC-11

12 Colorado and Federal Arbitration Law and Practice Expired/Terminated Contract Statute Of Limitations Contractual Time Limits Laches And Estoppel Conditions Precedent Validity Of Contract Under The Antitrust Laws Foreign Immunity Unconscionability Of The Arbitration Clause Other Than Class Action Provisions Lack Of Mutuality Prohibitive Cost Of Arbitration Waiver Of Class Actions Venue Unavailability Of The Arbitration Administrator/Forum/ Arbitrator Public Policy Default By Non-payment Of Arbitration Fees Indispensable Party Failure To Obtain License Waiver/Estoppel To Assert Defense 7.7 CONDITIONS PRECEDENT TO THE OBLIGATION TO ARBITRATE Mediation As A Condition Precedent To Arbitration Design Professional Certification And Certificate Of Good Cause 7.8 INTERPRETING THE ARBITRATION AGREEMENT The Meaning Of May Arbitrate And Arising Under Construing Multiple Documents Together Interpretation Of The Asserted Agreement To Arbitrate 7.9 WAIVER OF RIGHT TO ARBITRATE 7.10 WAIVER OF OBJECTIONS TO ARBITRATION Judicial Estoppel 7.11 VOID, INVALID, OR ILLEGAL PROVISIONS IN THE ARBITRATION AGREEMENT Remedies For Offending Provisions 7.12 INTERTWINING CLAIMS TOC-12 (3/17)

13 Table of Contents 7.13 SPLITTING CLAIMS 7.14 BIBLIOGRAPHY Chapter 8 ARBITRABILITY ISSUES: WHO DECIDES THEM? 8.1 INTRODUCTION 8.2 THE ISSUES THAT DETERMINE WHETHER A DISPUTE WILL BE DECIDED BY ARBITRATION 8.3 WHO DECIDES ARBITRABILITY? STATUTORY PROVISIONS Federal Arbitration Act: Title 9, U.S.C CRUAA: C.R.S (2016) Waiver Of Statutory Directive Of Who Decides 8.4 WHO DECIDES ISSUES OF ARBITRABILITY? AGREEMENT OF THE PARTIES Agreements Under The CRUAA Agreements Under The FAA Agreements Incorporating Rules Providing Who Determines Arbitrability Waiver Of Agreements As To Who Determines Arbitrability Issues 8.5 WHO DECIDES ARBITRABILITY WHEN THE AGREEMENT IS SILENT? CASE LAW Generally Under The FAA Generally Under Colorado Law (CRUAA) FAA Preemption Of State Law As To Who Decides The Arbitrability Issues Who Decides Who First Receives The Issue? 8.6 WHO DETERMINES EACH SPECIFIC ARBITRABILITY ISSUE UNDER THE FAA? Whether The Parties Have Agreed In Writing To Arbitrate? Whether The Agreed-Upon Dispute Resolution Procedure Is Arbitration Within The Scope Of The FAA? Whether The Dispute Is Within The Scope Of The Agreement? Whether An Affirmative Defense Bars Enforcement Of The Agreement To Arbitrate? Who Decides A Party Has Waived Its Right To Arbitrate? (3/17) TOC-13

14 Colorado and Federal Arbitration Law and Practice Whether Arbitrations Should Be Consolidated? Whether The Contract Was Fraudulently Induced? Whether The Agreement Or Arbitration Clause Is Unconscionable? Whether An Award Is Rendered Timely Or Further Proceedings May Be Held? Issues Of Procedural Arbitrability Whether Conditions Precedent Have Been Fulfilled? Where Is The Venue For The Arbitration? Claim Preclusion (Res Judicata/Collateral Estoppel)? Whether The Signatories To An Agreement With An Arbitration Clause Have Authority To Sign? Whether The Arbitration Agreement Is Ambiguous? Whether The Dispute Is Subject To The FAA Or To The CRUAA, Or Excluded Therefrom? Whether The Parties Had The Mental Capacity To Contract? Whether A Party Has Waived The Right To Have The Arbitrator Determine Whether An Arbitration Clause Is Unconscionable, Or Other Affirmative Defenses? Whether The Agreement Provides For Class-Wide Arbitration Whether Non-Signatories Are Bound By Or May Enforce The Arbitration Agreement Summary Who Decides If A Party Is In Default? Whether Treble Damages Are Punitive Damages Precluded By The Agreement? 8.7 WHO DETERMINES EACH SPECIFIC ARBITRABILITY ISSUE UNDER COLORADO LAW? Whether The Parties Have Agreed In A Record To Arbitration? Whether The Agreed-Upon Dispute Resolution Procedure Is Arbitration Within The Scope Of The CRUAA? Whether The Dispute Is Within The Scope Of The Agreement? Whether An Affirmative Defense Bars Enforcement Of The Agreement To Arbitrate? Whether A Party Has Waived Its Right To Arbitrate? Whether Arbitrations Should Be Consolidated? Whether The Contract Was Fraudulently Induced? Whether The Agreement Or Arbitration Clause Is Unconscionable? Whether An Award Is Rendered Timely Or Further Proceedings May Be Held? Issues Of Procedural Arbitrability Whether Conditions Precedent Have Been Met? Where Is The Venue For The Arbitration? Claim Preclusion (Res Judicata/Collateral Estoppel)? TOC-14 (3/17)

15 Table of Contents Whether The Signatories To An Agreement With An Arbitration Clause Had Authority To Sign? Whether The Arbitration Agreement Is Ambiguous? Whether The Dispute Is Subject To The FAA Or To The CRUAA, Or Excluded Therefrom? Whether The Parties Had Mental Capacity To Contract? Whether A Party Has Waived The Right To Have The Arbitrator Determine Whether An Arbitration Clause Is Unconscionable, Or To Determine Other Affirmative Defenses? Whether The Agreement Provides For Class-Wide Arbitration? Whether Non-Signatories Are Bound By Or May Enforce The Arbitration Agreement? 8.8 WHAT IS THE EFFECT OF THE FORUM IN WHICH THE ISSUES ARE RAISED? 8.9 WHEN AND WHERE ARE ARBITRABILITY ISSUES DECIDED? Arbitrability Issues First Raised In A Civil Action Arbitrability Issues First Raised In The Arbitration 8.10 PROCEDURES AFTER DETERMINING THE ARBITRATION ISSUES APPEAL 8.11 BIBLIOGRAPHY Chapter 9 PROCEDURES TO STAY OR COMPEL ARBITRATION 9.1 INTRODUCTION 9.2 STATUTORY PROVISIONS FOR COMPELLING OR STAYING ARBITRATION OR STAYING LITIGATION Compelling Arbitration Under The FAA Compelling Arbitration Under The CRUAA Which Law In Which Court Statute Of Limitations In Which Forum Is The Motion Filed 9.3 COMPELLING OR STAYING ARBITRATION AND/OR STAYING CIVIL ACTION: GENERALLY Motion By Defendant In Pending Civil Action To Stay The Civil Action And Compel Arbitration Of The Claims Application To Compel Arbitration And Stay Litigation (3/17) TOC-15

16 Colorado and Federal Arbitration Law and Practice Effect Of Order Compelling Arbitration Upon The Pending Civil Action: Staying Or Dismissing The Civil Action Federal Court Enjoining State Court Litigation Pending Arbitration Waiver Of Right To Compel Arbitration Staying Arbitration Or Litigation When Some Claims Must Be Heard In Each Forum 9.4 COMPELLING ARBITRATION WHEN NO CIVIL ACTION IS PENDING 9.5 STAYING OR DISMISSING PENDING ARBITRATION BY THE ARBITRATOR WHEN NO CIVIL ACTION IS PENDING Commencing Civil Action And Moving To Stay Arbitration Motion To Arbitrator To Stay Arbitration 9.6 JURISDICTION AND VENUE OF THE COURTS TO DETERMINE MOTION TO COMPEL OR TO STAY ARBITRATION AND TO STAY LITIGATION, AND CONTINUING JURISDICTION THEREAFTER Jurisdiction And Role Of The Court Upon Entry Of An Order Compelling Arbitration Remand To State Court Versus Ruling On FAA 3 Motion Jurisdiction Of Federal Magistrate 9.7 JUDICIAL PROCEDURE FOR DETERMINING A MOTION TO STAY OR COMPEL ARBITRATION Application For And Procedure To Compel Arbitration And Stay Litigation Grounds For Motion To Compel Arbitration Procedure To Assert Arbitrability Issues Evidentiary Hearing Sanctions Sua Sponte Action Jury Trial On Arbitrability Issues Stay Of Discovery On The Merits Pending The Court s Determination Of Motion To Compel Arbitration Waiver Of Right To Arbitrate And Objections To Arbitration Discovery On The Arbitrability Issue Appeal From Decision Of Magistrate Judge 9.8 ROLE OF COURT UPON COMPELLING ARBITRATION TOC-16 (3/17)

17 Table of Contents 9.9 STAY OR DISMISSAL OF CIVIL ACTION UPON ORDERING ARBITRATION 9.10 APPEALS OF ORDERS DENYING OR COMPELLING ARBITRATION 9.11 BIBLIOGRAPHY Chapter 10 REPRESENTATION OF PARTIES BY ATTORNEYS AND NON-ATTORNEYS 10.1 INTRODUCTION 10.2 THE RIGHT OF A PARTY TO BE REPRESENTED IN ARBITRATION The Right Of A Party To Be Represented By An Attorney The Right Of A Party To Be Represented By An Attorney Not Admitted To Practice In Colorado The Right Of A Party To Be Represented By A Non-Lawyer 10.3 FEDERAL REGULATION OF ADVOCATES IN ARBITRATIONS GOVERNED BY THE FAA 10.4 THE RIGHT OF A PARTY TO REPRESENT ITSELF 10.5 THE RIGHT OF WITNESSES TO BE REPRESENTED 10.6 UNAUTHORIZED PRACTICE OF LAW IN ARBITRATION Out-Of-State Lawyers Representing Parties Non-Lawyer Employee Representing Corporate Party 10.7 REGULATION OF PERSONS REPRESENTING PARTIES IN ARBITRATION Regulation Of Lawyers Appearing In Arbitration Disqualification Of Lawyer Representing A Party Arbitrator Versus Court Determination Of Issues Regarding Legal Representation During Arbitration Proceedings 10.8 ETHICAL RULES (3/17) TOC-17

18 Colorado and Federal Arbitration Law and Practice Chapter 11 THE ARBITRATOR: QUALIFICATION, JURISDICTION, APPOINTMENT, DISCLOSURE, RESIGNATION, DISQUALIFICATION, IMMUNITY, AND ETHICS 11.1 INTRODUCTION 11.2 QUALIFICATIONS AND APPOINTMENT OF THE ARBITRATOR Qualifications Agreement As To Manner Of Selection/Appointment Judicial Appointment CRUAA FAA Effect Of Non-Compliance With Appointment Procedures Waiver Of Objections To Appointment Procedure For Objecting To The Appointment Of The Arbitrator Number Of Arbitrators Admission To The Colorado Bar 11.3 ARBITRATOR NEUTRALITY Bias/Evident Partiality Of The Arbitrator Party-Appointed Arbitrators Who Determines Whether An Arbitrator Must Be Neutral? 11.4 DISCLOSURES Disclosures By An Arbitrator Generally What Should Be Disclosed Disclosures By A Party-Appointed Neutral Arbitrator Disclosures By Non-Neutral Arbitrators Disclosures By The Parties And Their Attorneys Arbitrator s Duty To Investigate For Possible Disclosures/ Conflicts Social/Professional Networking 11.5 ARBITRATOR S OATH 11.6 DISQUALIFICATION OF ARBITRATOR Pre-Award Judicial Involvement In Arbitrator Disqualification Provisions In The AAA Rules Relating To Disqualification Rules After Disqualification Timing Of Request For Disqualification Disqualification Of A Party-Appointed Neutral Arbitrator TOC-18 (3/17)

19 Table of Contents Who Determines Disqualification? Grounds For Disqualification Procedures To Disqualify Arbitrator Appeals Of Grant Or Denial Of Disqualification 11.7 REFUSAL, RESIGNATION, AND REPLACEMENT OF THE ARBITRATOR Prior To The Hearing Incapacity Of Panel Member Refusal, Resignation, And Replacement During The Hearing Replacement Under AAA Rules Non-lawyer Arbitrators 11.8 SCOPE AND DURATION OF ARBITRATOR S AUTHORITY AND POWERS Arbitrator s Powers Over Parties And Representatives: Sanctions Arbitrator s Powers Over Conduct Of Proceedings Arbitrator s Power To Conduct Independent Investigation Of Law And Facts 11.9 ETHICAL STANDARDS OF THE ARBITRATOR Colorado Rules Of Professional Conduct ABA/AAA Code Of Ethics Unauthorized Practice Of Law ACTION BY MAJORITY OF ARBITRATORS IMMUNITY OF ARBITRATOR (COMPETENCY TO TESTIFY, ATTORNEY FEES AND COSTS) IMMUNITY OF ARBITRATION ORGANIZATION DELIBERATIONS AND DECISION-MAKING PROCEDURES OF THE ARBITRATOR(S) FAILURE TO PAY FEES BIBLIOGRAPHY (3/17) TOC-19

20 Colorado and Federal Arbitration Law and Practice Chapter 12 PLEADINGS, MOTIONS, FEES, AND DEFAULT 12.1 INTRODUCTION 12.2 ADMINISTERED AND NON-ADMINISTERED ARBITRATION 12.3 STATUTES AND RULES GOVERNING INITIATION/ COMMENCEMENT OF ARBITRATION 12.4 PLEADINGS: DEMAND, ANSWER, AND COUNTERCLAIM Demand Manner Of Service Of The Demand: Notice Jurisdictional Boundaries Of Service Answer/Response/Counterclaim To A Demand/Notice For Arbitration Further Pleadings And Procedures Objections To Initiation Of Arbitration And Notice Waiver 12.5 MOTIONS Motions For Summary Judgment/Dismissal 12.6 FAILURE/INABILITY/REFUSAL OF ONE PARTY TO PAY FEES 12.7 DEFAULT: PROCEEDING WITH ARBITRATION WHEN RESPONDENT FAILS TO APPEAR 12.8 MOTION TO STAY ARBITRATION 12.9 APPOINTMENT OF ARBITRATOR MOTION TO DISQUALIFY ARBITRATOR ENFORCEMENT OF ARBITRATOR S PRE-HEARING ORDERS Chapter 13 THE PREHEARING ARBITRATION PROCESS 13.1 INTRODUCTION Arbitration Process Under The FAA Arbitration Process Under The CRUAA Arbitration Process Under Rules Agreed To By The Parties Venue For Arbitration Generally TOC-20 (3/17)

21 Table of Contents Venue Of Arbitration Defined By Statute Venue Of Arbitration By Agreement Selection Of Venue For Arbitration By The Arbitrator 13.2 CONFIDENTIALITY AND PRIVILEGE 13.3 PRE-HEARING MOTIONS Pre-Hearing Dispositive Motions (Including For Summary Judgment) Joinder Of Parties To The Arbitration Consolidation Of Arbitrations Class Action Arbitration Objecting To Arbitration: Arbitrability Issues 13.4 PRE-HEARING CONFERENCES AND ORDERS 13.5 DISCOVERY Discovery Under The FAA Discovery Under The CRUAA Sanctions And Enforcement Of Discovery Discovery With Respect To Arbitrability Issues 13.6 SUBPOENAS Scope Of Arbitrator s Subpoena Power Objecting To And Enforcement Of A Subpoena Territorial Limits For Service Of A Subpoena Form Of Subpoenas Agreement As To Applicable Subpoena Law Purpose Of Subpoena: Non-Party Discovery Versus Hearing Evidence Issuance Of Subpoenas Applicable Law 13.7 POSTPONEMENT OF THE HEARING 13.8 THE DILATORY ARBITRATOR 13.9 JUDICIAL INVOLVEMENT IN ARBITRATION INTERLOCUTORY APPEALS BIBLIOGRAPHY (3/17) TOC-21

22 Colorado and Federal Arbitration Law and Practice Chapter 14 PRE-AWARD RULINGS, INTERIM AND PROVISIONAL ORDERS, SANCTIONS AND ENFORCEMENT, AND JUDICIAL INVOLVEMENT IN THE ARBITRATION PROCESS 14.1 INTRODUCTION 14.2 PRE-HEARING ISSUES Pre-Hearing Dispositive Motions Joinder Of Parties To The Arbitration Consolidation Of Arbitrations Class Action Determinations Objections To Arbitration: Arbitrability Issues Discovery Motions With Respect To The Arbitrator 14.3 THE POWER OF ARBITRATORS TO GRANT INTERIM/ PROVISIONAL RELIEF Generally Types Of Interim/Provisional Relief Granted By Arbitrators Interim/Provisional Relief Under AAA Rules Standards/Requirements For Interim Relief AAA Emergency Relief Rules Interlocutory Appeals Of Interim Orders 14.4 THE POWER OF COURTS TO GRANT INTERIM/PROVISIONAL RELIEF IN ARBITRATION Powers Under The FAA Powers Under The CUAA Powers Under The CRUAA 14.5 REVIEW AND ENFORCEMENT OF INTERIM/PROVISIONAL RELIEF Enforcement By The Arbitrator Review Of Interim/Provisional Orders Of The Arbitrator By The District Court Enforcement By The Courts 14.6 JUDICIAL INVOLVEMENT IN THE ARBITRATION PROCESS Control Over The Parties Control Over The Arbitrator TOC-22 (3/17)

23 Table of Contents Control Over Attorneys And Representatives Control Over Discovery Control Over Witnesses 14.7 SANCTIONS 14.8 ARBITRATION IN BANKRUPTCY PROCEEDINGS 14.9 BIBLIOGRAPHY Chapter 15 THE ARBITRATION HEARING: PROCEDURES, WITNESSES, EVIDENCE, AND CLOSING 15.1 INTRODUCTION 15.2 HEARING PROCEDURES AND RULES CRUAA Procedures FAA Procedures AAA Procedures Waiver Of Procedural Objections Applicability Of Rules Of Civil Procedure 15.3 POSTPONEMENT/CONTINUANCE OF THE ARBITRATION HEARING 15.4 EVIDENCE FAA CRUAA Types/Forms Of Evidence 15.5 DEFAULT PROCEEDINGS 15.6 ARBITRATOR CEASES OR FAILS TO ACT 15.7 ARBITRATOR DIES, IS REMOVED, OR IS DISQUALIFIED 15.8 CONDUCT OF THE HEARING Representatives Of Parties Consideration Of Evidence Outside The Hearing Telephone Testimony (3/17) TOC-23

24 Colorado and Federal Arbitration Law and Practice 15.9 WITNESSES Privilege And Confidentiality Subpoenas Oaths Sequestration/Exclusion Of Witnesses Witness Immunity EXHIBITS THE CREATIVE ASPECTS OF ARBITRATION THE ROLE OF THE COURT DURING THE ARBITRATION PROCESS CLOSING THE ARBITRATION PROCEEDING AND REOPENING IT Chapter 16 THE ARBITRATION AWARD 16.1 INTRODUCTION 16.2 STATUTORY REQUIREMENTS AND AAA RULES FOR AN AWARD CRUAA AAA FAA 16.3 PROCEDURES AND REQUIREMENTS FOR AN AWARD Majority Action Of The Arbitrators Time For Rendering The Award Requirements As To The Form Of The Award Types Of Awards: General, Reasoned, And Findings Of Fact And Conclusions Of Law Death Of A Party Sua Sponte Action By The Arbitrator 16.4 DELIBERATIONS AND THE AWARD The Deliberative Process Consideration Of Facts, Information, And Law Outside The Record Duty Of Arbitrator To Follow The Law TOC-24 (3/17)

25 Table of Contents 16.5 DELIVERY OF THE AWARD 16.6 TYPES OF REMEDIES AND SCOPE OF RELIEF Compensatory Damages Punitive Damages And Treble Damages Excessive Punitive Damages Award Injunction And Other Equitable Relief Fees And Expenses Of Arbitration And Mediation Pre-Award/Post-Award (Prejudgment/Post-Judgment) Interest Attorney Fees Baseball Arbitration Sanctions Receivers 16.7 BINDING EFFECT OF AWARD Issues Resolved By The Arbitration Effect Of An Award: Issue And Claim Preclusion Arbitrator s Jurisdiction After Issuance Of The Award Abandonment Of Award 16.8 DUTY OF ARBITRATOR TO FOLLOW THE LAW VERSUS JUSTICE AND EQUITY 16.9 DEFAULT AWARDS BIBLIOGRAPHY VOLUME 2 Chapter 17 POST-AWARD PROCEEDINGS BEFORE ARBITRATOR AND DISTRICT COURT: MODIFICATION/CORRECTION/VACATION OF THE AWARD 17.1 INTRODUCTION 17.2 FINALITY OF AWARD FOR PURPOSES OF JUDICIAL ACTION CRUAA FAA Agreement Of The Parties Not To Have Judicial Review Of An Arbitrator s Award Waiver Of Objections By Conduct (3/17) TOC-25

26 Colorado and Federal Arbitration Law and Practice 17.3 POST-AWARD MODIFICATION OR CORRECTION (CHANGE) OF THE AWARD Post-Award Modification Or Correction (Change) Of The Award By The Arbitrator Post-Award Modification Or Correction Of The Award By The Court Procedures For Post-Award Modification Or Correction Of The Award Generally Procedures For Post-Award Modification Or Correction By Arbitrator Procedures For Post-Award Modification Or Correction By The Court Procedures For Court Referral Of Motion For Post-Award Modification Or Correction To The Arbitrator Post-Award Reopening Of The Evidence/Motion For New Arbitration Hearing Arbitrator s Loss Of Jurisdiction: Functus Offico 17.4 GROUNDS FOR VACATING THE AWARD Statutory And Common Law Grounds For Vacating An Award Under The FAA Statutory And Common Law Grounds For Vacating An Award Under The CRUAA Contractual Grounds For Vacating An Award Applicability Of Federal Common Law Grounds For Vacating An Award In State Court Award Procured By Corruption, Fraud, Or Undue Means Evident Partiality, Bias, Or Corruption By The Arbitrator(s) Refusal Of Arbitrator To Postpone Hearing Upon Sufficient Cause Shown Refusal Of The Arbitrator To Hear Pertinent And Material Evidence Arbitrator Exceeding Or Imperfectly Executing Powers Arbitrator Misconduct/Misbehavior Prejudicing A Party Hearing Conducted Contrary To Statutes And Substantially Prejudicing The Rights Of A Party Lack Of Arbitration Agreement And Issue Was Not Previously Determined Lack Of Proper Notice Enhanced Scope Of Review Agreed To By The Parties Vacation Of Award Because Of Manifest Disregard Of The Law Vacation Of Award As Being Against Public Policy Other Common Law Grounds TOC-26 (3/17)

27 Table of Contents 17.5 PROCEDURES FOR VACATING THE AWARD Procedures For Vacating The Award Under The CUAA Procedures For Vacating The Award Under The CRUAA Procedures For Vacating The Award Under The FAA The Record On Which The Motion To Vacate Is Determined Venue For Motion To Vacate Removal To Federal Court Of A Motion To Vacate An Award Discovery With Respect To Motion To Vacate 17.6 PROCEDURE AFTER VACATION OF AN AWARD CRUAA FAA Remand Of Arbitration To A New Arbitrator(s) 17.7 FRIVOLOUS MOTIONS TO VACATE 17.8 SCOPE OF REVIEW OF ARBITRATORS AWARDS BY THE DISTRICT COURT Vacation, Modification, Or Correction Of Punitive Damage Award District Court Review Of Arbitrators Decisions And Orders Standard Of Review Of Awards Generally Award Of Attorney Fees 17.9 STATE OR FEDERAL ARBITRATION STATUTES AS GOVERNING GROUNDS FOR APPEAL APPELLATE ARBITRATION BIBLIOGRAPHY Chapter 18 THE ARBITRATION AWARD: CONFIRMATION, JUDGMENT, FEES, AND INTEREST 18.1 INTRODUCTION 18.2 AWARDS SUBJECT TO CONFIRMATION (FINAL VERSUS INTERIM AWARDS) 18.3 CONFIRMATION AND JUDGMENT: GENERALLY (3/17) TOC-27

28 Colorado and Federal Arbitration Law and Practice 18.4 THE PROCEDURE FOR CONFIRMATION AND JUDGMENT The Statutes Providing For Confirmation And Judgment Timing Of A Motion To Confirm Award And For Entry Of Judgment Jurisdiction Of The Court For Confirmation Of And Judgment On The Award Venue For Confirmation And Judgment On The Award Power Of Court To Confirm And Enter Judgment The Steps For Application Or Motion For Confirmation Of And Judgment On The Arbitration Award Defenses/Counterclaims To A Motion To Confirm The Arbitration Award Confidentiality And Sealing The Record Form And Content Of Order Of Confirmation And Judgment Removal To Federal Court Of A Motion To Confirm Award 18.5 TERMS OF AND RELIEF GRANTED BY THE AWARD THAT ARE CONFIRMED AND WITHIN THE JUDGMENT ENTERED Judgment For Arbitrator s Fees And Expenses Judgment For Attorney Fees For Post-Award Proceedings Judgment For Costs And Expenses Of Confirmation Pre-Award, Post-Award/Prejudgment, And Post-Judgment Interest Award Of Future Relief/Amended Judgment 18.6 EFFECT OF CONFIRMATION AND ENTRY OF JUDGMENT Issue Preclusion By Award/Judgment (Res Judicata And Collateral Estoppel) Correction Of Judgment Who Determines The Effect Of An Award? 18.7 ENFORCEMENT OF THE JUDGMENT 18.8 APPEAL OF THE JUDGMENT OF CONFIRMATION OR VACATION OF AWARD TOC-28 (3/17)

29 Table of Contents Chapter 19 JURISDICTION AND VENUE OF THE STATE AND FEDERAL DISTRICT COURTS AND OF THE ARBITRATOR 19.1 INTRODUCTION 19.2 SUBJECT MATTER JURISDICTION OF THE COLORADO STATE COURTS OVER ARBITRATION ISSUES Jurisdiction Of The Colorado State District (Trial) Courts Subject Matter Jurisdiction Of The Colorado State Appellate Courts Jurisdiction Of State Courts Affected By Agreement Of The Parties Jurisdiction Of Colorado Appellate Courts 19.3 SUBJECT MATTER JURISDICTION OF THE FEDERAL COURTS OVER ARBITRATION ISSUES Subject Matter Jurisdiction Of The Federal District Courts Subject Matter Jurisdiction Of The Federal District Courts As To Specific Proceedings Subject Matter Jurisdiction Of The Federal Appellate Courts 19.4 SUBJECT MATTER JURISDICTION OF THE ARBITRATOR 19.5 IN PERSONAM JURISDICTION OF THE COLORADO STATE DISTRICT COURTS OVER PARTIES TO AN ARBITRATION PROCEEDING 19.6 IN PERSONAM JURISDICTION OF THE FEDERAL DISTRICT COURT OVER PARTIES TO AN ARBITRATION PROCEEDING 19.7 IN PERSONAM JURISDICTION OF THE ARBITRATOR/ ARBITRATION OVER THE PARTIES TO AN ARBITRATION PROCEEDING 19.8 JURISDICTION OF TRIAL COURT DURING THE ARBITRATION AND PENDENCY OF APPEAL Division Of Jurisdiction Between The Arbitrator And Trial Court Division Of Jurisdiction Between The Federal District Court And Court Of Appeals Pending Appeal Jurisdiction Of The District Court During An Appeal And Stay (3/17) TOC-29

30 Colorado and Federal Arbitration Law and Practice 19.9 VENUE OF THE ARBITRATION Venue Of Arbitration Defined By Statute Contractual Forum Selection Selection Of Venue By The Arbitrator VENUE FOR JUDICIAL PROCEEDINGS Venue For Federal District Court Proceedings Venue For Colorado District Court Proceedings Colorado District Court Venue Under The FAA REMOVAL OF ARBITRATION CASE FROM STATE TO FEDERAL COURT JURISDICTION OF STATE APPELLATE COURTS JURISDICTION OF FEDERAL APPELLATE COURTS Chapter 20 APPEAL OF TRIAL COURT ORDERS AND JUDGMENTS 20.1 INTRODUCTION 20.2 APPEALS OF COLORADO STATE DISTRICT COURT ARBITRATION ORDERS AND JUDGMENTS Orders That May Be Appealed From The Colorado State District Court Under The State Statutes Orders That May Be Appealed From The Colorado State District Court When The FAA Is Applicable To The Arbitration Interlocutory Appeals Appeals To Federal Court 20.3 APPEALS OF FEDERAL DISTRICT COURT ARBITRATION ORDERS AND JUDGMENTS UNDER THE FAA Interlocutory Appeals 20.4 TIMING OF THE APPEAL 20.5 AGREEMENTS TO ADD TO OR ELIMINATE STATUTORY GROUNDS FOR APPEAL WAIVER OF RIGHT TO APPEAL TOC-30 (3/17)

31 Table of Contents 20.6 APPLICATION OF STATE OR FEDERAL APPEAL LAW: FAA PREEMPTION 20.7 STAY OF LITIGATION OR ARBITRATION PENDING APPEAL OF GRANT OR DENIAL OF MOTION TO COMPEL ARBITRATION 20.8 SCOPE OF REVIEW Grant Or Denial Of Motion To Compel Arbitration Scope Of Review Of Specific Issues 20.9 RELIEF ACCORDED BY APPELLATE COURTS FAA CRUAA Sanctions Frivolous Appeals Remand And New Arbitration Costs And Attorney Fees APPELLATE ARBITRATION BIBLIOGRAPHY Chapter 21 ADR IN THE (COLORADO) STATE AND FEDERAL COURTS 21.1 INTRODUCTION 21.2 ADR IN THE COLORADO STATE COURTS Compulsory Mediation And Arbitration 21.3 ADR IN THE FEDERAL COURTS ADR In The Federal District Court Under Chapter 44, U.S.C. (28 U.S.C. 651, et seq.) Mediation In The Tenth Circuit Court Of Appeals Federal Civil Justice Reform Act Of 1990, 28 U.S.C. 471, et seq Compulsory Mediation And Arbitration 21.4 BIBLIOGRAPHY (3/17) TOC-31

32 Colorado and Federal Arbitration Law and Practice Chapter 22 ADR IN THE STATE AND FEDERAL GOVERNMENTS, AGENCIES, AND SUBDIVISIONS 22.1 INTRODUCTION 22.2 ADR IN DISPUTES WITH THE STATE OF COLORADO, ITS AGENCIES, AND ITS POLITICAL SUBDIVISIONS Power Of State Governmental Entities To Submit Disputes To Binding Arbitration School Districts Cities Counties Special Districts City And County State Of Colorado And Its Agencies 22.3 ADR IN DISPUTES WITH THE FEDERAL GOVERNMENT AND ITS AGENCIES Administrative Dispute Resolution Act 22.4 BIBLIOGRAPHY Chapter 23 INTERNATIONAL ARBITRATION* 23.1 INTRODUCTION Limited Scope Of Chapter The Difference Between Domestic And International Arbitration 23.2 GOVERNING LAWS: STATUTES, TREATIES, AND RULES Federal Arbitration Act (FAA) Colorado International Dispute Resolution Act United Nations Convention On The Recognition And Enforcement Of Foreign Arbitral Awards (New York Convention) Inter-American Convention On International Commercial Arbitration (Washington/Panama Convention) (9 U.S.C. 301) United Nations Model Law On International Commercial Arbitration (UN Model Law) International Convention On The Settlement Of Investment Disputes (ICSID) (Washington Convention) TOC-32 (3/17)

33 Table of Contents Other Laws Arbitration Rules 23.3 ARBITRATION CLAUSES Institutional Clauses Ad Hoc Clauses Step Clauses Other Laws Affecting The Contract And The Arbitration 23.4 ADMINISTRATION OF INTERNATIONAL ARBITRATION Administration Generally Administrating Institutions Ad Hoc Administration 23.5 THE ARBITRATION PROCEEDINGS Selection Of Arbitrator(s) Organization Of Proceedings Challenges To Arbitrators Evidence Discovery Post-Hearing Proceedings 23.6 AWARDS AND ENFORCEMENT Generally Interim Awards Costs Challenges To Awards Confirmation 23.7 BIBLIOGRAPHY Chapter 24 MEDIATION, SETTLEMENT AGREEMENTS, AND THE COLORADO DISPUTE RESOLUTION ACT 24.1 GENERALLY Colorado Law Federal Law Kinds Of Mediation Drafting The Mediation Agreement (3/17) TOC-33

34 Colorado and Federal Arbitration Law and Practice 24.2 THE COLORADO DISPUTE RESOLUTION ACT C.R.S , Definitions Office Of Dispute Resolution Mediation Services Confidentiality/Privilege Settlement Of Disputes Court Referral To Mediation Ancillary Forms Of Alternative Dispute Resolution Office Of Dispute Resolution Mediation Policies And Procedures Manual Provisions Of The Act Not Limited To The Office Of Dispute Resolution ADR Programs 24.3 COURT-ANNEXED MEDIATION 24.4 SETTLEMENTS IN MEDIATION Requirement Of Executed Written Settlement Agreement Role Of Mediator In Drafting Settlement Agreement Enforcement Of Mediated Settlement Agreements Waiver Of Appellate Review In Consent Decree Provided By Dispute Resolution Mechanism 24.5 THE MEDIATOR Ethical And Honesty Standards Mediator Liability/Immunity Mediator Conflicts Of Interest Mediator As A Witness Mediation As The Practice Of Law The Non-Neutral Mediator 24.6 MANDATORY MEDIATION Judicial Power To Order Mediation Enforcement Of ADR Agreements And Requirements Mediation As A Condition Precedent To Litigation Or Arbitration 24.7 THE MEDIATION PROCESS Powers, Duties, And Responsibilities Of The Mediator Powers, Duties, And Responsibilities Of The Parties: Obligation Of Good-Faith Participation In Mediation Mediation Procedures Collaborative Mediation TOC-34 (3/17)

35 Table of Contents 24.8 SETTLEMENT AGREEMENTS INCORPORATED INTO A JUDICIAL JUDGMENT 24.9 ENFORCEABILITY OF AGREEMENTS TO MEDIATE THE PRACTICE OF MEDIATION The Agreement To Mediate The Confidential Mediation Statement Pre-Mediation Contact With The Mediator The Mediation Conference COLORADO STATUTORY MEDIATION FEDERAL STATUTORY MEDIATION ONLINE MEDIATIONS MEDIATORS AND MEDIATION ORGANIZATIONS BIBLIOGRAPHY Chapter 25 OTHER ADR PROCEDURES 25.1 INTRODUCTION 25.2 NON-BINDING ARBITRATION 25.3 DENVER REVISED MUNICIPAL CODE DISPUTE RESOLUTION PROCEDURE 25.4 DISPUTE RESOLUTION BOARDS 25.5 EARLY NEUTRAL EVALUATION AND FACT FINDING 25.6 APPRAISALS 25.7 PRIVATE JUDGES ( RENT-A-JUDGE ) 25.8 ARBITRATION UNDER THE PROPERTY TAX EQUALIZATION STATUTE 25.9 ADR UNDER COLORADO RULES OF CIVIL PROCEDURE (3/17) TOC-35

36 Colorado and Federal Arbitration Law and Practice MEMBERSHIP/RELIGIOUS ARBITRATIONS ONLINE DISPUTE RESOLUTION MINI-TRIALS DOMESTIC RELATIONS BIBLIOGRAPHY Chapter 26 PROCEDURES FOR FILING/PROSECUTING AND DEFENDING AN ARBITRATION 26.1 INTRODUCTION 26.2 ARBITRATION ADMINISTERED BY THE AAA In General Which AAA Rules Are Applicable? Overview Of An AAA-Administered Arbitration When Is A Case Administered By The AAA? 26.3 THE SPECIFICS OF AN AAA ARBITRATION PURSUANT TO ITS RULES Commencing The Arbitration Service Of The Demand Answer To The Demand Compelling Arbitration Or Default Proceeding Respondent s Objection To Arbitration Selection/Appointment Of The Arbitrator(s) Amendments To Pleadings Prehearing Procedures Hearings Interim Proceedings And Relief Close Of The Hearing/Reopening Awards Waiver Of The Rules Extensions Of Time Loss Of Jurisdiction Of The Arbitrator Interpretation And Application Of The Rules: Powers Of The Arbitrator Judicial Proceedings Summary And Conclusion TOC-36 (3/17)

37 Table of Contents 26.4 NON-ADMINISTERED ARBITRATION GENERALLY In General Examples Of Duties And Responsibilities Handled By The Administrator Versus Being Handled By The Parties, Court, Or Arbitrator 26.5 THE SPECIFICS OF A NON-ADMINISTERED ARBITRATION, WITHOUT RULES EXHIBITS Commencing The Arbitration The Demand Service Of The Demand Answer To The Demand Compelling Arbitration Or Default Proceeding Respondent s Objection To Arbitration Arbitrability Issues Selection/Appointment Of The Arbitrator(s) Amendment To Pleadings Prehearing Procedures Hearings Failure Of A Party To Attend Interim Proceedings And Relief Close Of Hearing/Reopening Awards Waiver Of The Statutory Provisions Extensions Of Time Loss Of Jurisdiction Of The Arbitrator Administrative Responsibilities Of The Arbitrator Summary And Conclusions Exhibit 26A AAA Arbitration Roadmap A Guide To AAA Arbitration Exhibit 26B AAA Arbitration Process: An Overview Exhibit 26C Commencing An AAA Arbitration Exhibit 26D Questionnaire To Proposed Arbitrators Concerning Neutrality Exhibit 26E AAA Preliminary Hearing Procedures And Form For Preliminary Prehearing And Scheduling Order Exhibit 26F Locale Determinations: AAA Exhibit 26G AAA Form Demand For Arbitration Exhibit 26H AAA Administrative Fees Exhibit 26I AAA Administrative Offices Exhibit 26J AAA Form Answer Exhibit 26K Accelerated Exchange Agreement Exhibit 26L Extended Sample Prehearing And Scheduling Order (3/17) TOC-37

38 Colorado and Federal Arbitration Law and Practice Appendix A COLORADO ARBITRATION AND MEDIATION STATUTES APPENDIX A1 APPENDIX A2 APPENDIX A3 COLORADO REVISED UNIFORM ARBITRATION ACT (CRUAA), C.R.S , et seq. (2016) COLORADO DISPUTE RESOLUTION ACT, C.R.S , et seq. (2016) COLORADO INTERNATIONAL DISPUTE RESOLUTION ACT, C.R.S , et seq. (2016) Appendix B FEDERAL ARBITRATION STATUTES APPENDIX B1 APPENDIX B2 APPENDIX B3 APPENDIX B4 FEDERAL ARBITRATION ACT, 9 U.S.C. 1, et seq. CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS, 9 U.S.C. 201, et seq. INTER-AMERICAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION, 9 U.S.C. 301, et seq. ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS, 5 U.S.C. 571, et seq. Appendix C AMERICAN ARBITRATION ASSOCIATION RULES APPENDIX C1 APPENDIX C2 AMERICAN ARBITRATION ASSOCIATION WEBSITE COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES (INCLUDING PROCEDURES FOR LARGE, COMPLEX COMMERCIAL DISPUTES) (Located in e-book in your CLE Dashboard, TOC-38 (3/17)

39 Table of Contents Appendix D SAMPLING OF OTHER ADR ORGANIZATIONAL RULES APPENDIX D1 APPENDIX D2 APPENDIX D3 GENERAL INFORMATION JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES (Located in e-book in your CLE Dashboard, INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION AND RESOLUTION RULES FOR NON-ADMINISTERED ARBITRATION (Located in e-book in your CLE Dashboard, Appendix E ETHICAL RULES APPENDIX E1 ABA/AAA REVISED CODE OF ETHICS FOR ARBITRATORS Appendix F SAMPLE ARBITRATION PLEADINGS APPENDIX F1 APPENDIX F2 APPENDIX F3 APPENDIX F4 APPENDIX F5 APPENDIX F6 APPENDIX F7 APPENDIX F8 APPENDIX F9 NOTES ON THE USE OF THESE SAMPLE PLEADINGS DEFENDANT S MOTION TO STAY CIVIL ACTION AND COMPEL ARBITRATION ORDER STAYING CIVIL ACTION AND COMPELLING ARBITRATION PLAINTIFF S MOTION TO STAY ARBITRATION ORDER STAYING ARBITRATION PLAINTIFF S MOTION FOR APPOINTMENT OF ARBITRATOR ORDER APPOINTING ARBITRATOR PLAINTIFF S MOTION TO ENFORCE ARBITRATION SUBPOENA ORDER TO ENFORCE ARBITRATION SUBPOENA (ORDER DIRECTING THOMAS TOMS TO SHOW CAUSE) (3/17) TOC-39