Hello, Dakota.
Thirty-four states and the District of Columbia have enacted the
Uniform Arbitration Act which sets forth the law by which some (but
not all) arbitration takes place. Those states, with links to most of
their state statutes, can be found here:
http://www.law.cornell.edu/uniform/vol7.html#arbit (scroll down about
one page to the first text table entitled Uniform Arbitration Act).The
purpose of these Uniform Acts and why many states have adopted them is
so as to validate the various arbitration agreements, make the process
more effective, provide safeguards (particularly for the consumer),
and to provide for efficient procedures when judicial assistance is
necessary.
Just so as to walk a little common ground, let’s look at the legal
definition of “arbitration”: “A process of dispute resolution in
which a neutral third party (arbitrator) renders a decision after a
hearing at which both parties have an opportunity to be heard. Where
arbitration is voluntary, the disputing parties select the arbitrator
who has the power to render a binding decision.” See Black’s Law
Dictionary.
Whether your arbitration falls under the protection of an Arbitration
Act, still the provisions of the acts will be instructive. I would
suggest you review the provisions of the Uniform Act and glean any
ideas that you can about the procedure – who goes first, what they
have to prove, calling of witnesses, etc.
But if I may, from my trial lawyers perspective, I would like to share
some ideas with you that are more from personal experience in
presenting evidence in a dispute.
1. Define the dispute in terms as clear as possible (e.g. “the sofa
that was delivered was not the same model that I chose on the showroom
floor.”)
2. Define the remedy you are seeking (e.g. “I want a refund.”)
3. Now this seems basic, but once you have defined why you are there,
and what you want, stick to it. It is very easy to get sucked into
other disputes – but you have to convince the arbitrator as to #1
above. That’s all. Period. Anything else is a fog on the dispute.
4. How can I support my argument in #1 above – are there witnesses?
Sales brochures? Photographs? Your story? Opinions of observers to
the transaction or people that saw the furniture in place at your home
or office?
5. If you desire the testimony of others, can they go with you, or do
you need to have them write out their statement under oath (sometimes
called an “affidavit” or “declaration”) so that you can present their
statement in their absence.
6. Once you have collected all of your evidence, just lay it out in
such a manner that it tells the story. That is all you are doing is
telling a story. Forget formalities; the arbitrator is listening to
your story and needs to be swayed to the opinion that you have been
wronged.
7. Prior to the hearing, ask lots of questions. Who is the
arbitrator? Can I find out what evidence the other side is going to
present? If so, let me see it. What witnesses are going to be there?
Are there any time limits? Can I have an attorney present my case?
Can I have another person, not an attorney, present my case? If I
present my own case, how can I ask myself questions? Who is
representing the other side? Is that person an attorney?
8. If the parties can have an attorney present, find out if they are
going to strictly comply with rules of evidence and procedure. If so,
beware. These rules are terribly complex and can eat a layman alive if
there is an attorney on one side and not on the other.
9. If the cards seemed stacked against you – then find out if you can
opt out of arbitration and go the judicial route. The Uniform
Commercial Code, which governs the sale of goods, and has been adopted
by all 50 states, has powerful protections for the consumer. In
addition, the Consumer Protection Laws of many states also provide a
refuge for the consumer who has been taken advantage of, and in many
of these laws, if you win, the other side has to pay your attorneys
fees!
The Federal Trade Commission has provided some very useful information
here:
http://www.ftc.gov/bcp/conline/pubs/general/dispute.htm
Also, here is some additional information on arbitration from the
consumer’s perspective:
http://www.alabar.org/Adr/brochures/arbitration.pdf
Please provide a “clarification” here and let me know what state you
are, or if not in the U.S., what country you are in. I will attempt
then to find whatever information I can that is specific to your
location.
Good Luck! And remember, you’re just telling a story. Tell it slowly,
and clearly. Don’t let them push you around – just lay the story out
to the arbitrator along with your evidence. Keep it simple and to the
point.
Weisstho-ga |
Clarification of Answer by
weisstho-ga
on
20 Jun 2002 06:41 PDT
Good Morning, Dakota,
I mentioned above the Uniform Commercial Code, which is a uniform law
that has been adopted by all of the States, including California. It
is pretty lengthy and there are a number of provisions that apply to
situations like yours. But I think the key provisions are two and they
deal with a particular kind of "warranty": The Implied Warranty of
Merchantability. I will quote verbatim these two sections in the lower
part of this clarification.
As you relate the story the following thought comes to my mind: If you
saw this particular piece in the store, and said "deliver THIS piece
to me" I would say you have very little to stand on and will probably
lose in arbitration - the most you could hope for is that the merchant
settles with you prior to arbitration just to keep some customer
relations intact. BUT, if you saw a SAMPLE on the showroom, or a
picture in a CATALOG, and they delivered a piece with the problems you
are explaining, THEN I think you have an excellent case - that is
exactly where the Implied Warranty of Merchantability comes in.
I hope the language in these two sections is not confusing. I am
including all of the language from the two sections and have not
edited it down. Obviously some of the provisions won't apply to your
case.
Good Luck! weisstho-ga
UCC 2-314 Implied warranty; Merchantability, course of dealing, usage
of trade.
(1) Unless excluded or modified (section 2-316), a warranty that the
goods shall be Merchantable is implied in a contract for their sale if
the seller is a Merchant with respect to goods of that kind. Under
this section the serving for value of food or drink to be consumed
either on the premises or elsewhere is a sale.
(2) Goods to be Merchantable must be at least such as
(a) pass without objection in the trade under the contract
description; and
(b) in the case of fungible goods, are of fair average quality within
the description; and
(c) are fit for the ordinary purposes for which such goods are used;
and
(d) run, within the variations permitted by the agreement, of even
kind, quality and quantity within each unit and among all units
involved; and
(e) are adequately contained, packaged, and labeled as the agreement
may require; and
(f) conform to the promises or affirmations of fact made on the
container or label if any.
(3) Unless excluded or modified (section 2-316) other implied
warranties may arise from course of dealing or usage of trade.
xxxxxxxxxxxxxx
UCC 2-316 Words or conduct relevant to creation of express warranty
and tending to negate or limit warranty; construction; excluding or
modifying implied warranty of Merchantability and implied warranty of
fitness; language; example; limiting remedies for breach of warranty.
(1) Words or conduct relevant to the creation of an express warranty
and words or conduct tending to negate or limit warranty shall be
construed wherever reasonable as consistent with each other; but
subject to the provisions of this article on parol or extrinsic
evidence ( section 2-202) negation or limitation is inoperative to the
extent that such construction is unreasonable.
(2) Subject to subsection (3), to exclude or modify the implied
warranty of Merchantability or any part of it the language must
mention Merchantability and in case of a writing must be conspicuous,
and to exclude or modify any implied warranty of fitness the exclusion
must be by a writing and conspicuous. Language to exclude all implied
warranties of fitness is sufficient if it states, for example, that
“There are no warranties which extend beyond the description on the
face hereof.”
(3) Notwithstanding subsection (2): (a) unless the circumstances
indicate otherwise, all implied warranties are excluded by expressions
like “as is”, “with all faults” or other language which in common
understanding calls the buyer's attention to the exclusion of
warranties and makes plain that there is no implied warranty; and
(b) when the buyer before entering into the contract has examined the
goods or the sample or model as fully as he desired or has refused to
examine the goods there is no implied warranty with regard to defects
which an examination ought in the circumstances to have revealed to
him; and
(c) an implied warranty can also be excluded or modified by course of
dealing or course of performance or usage of trade; and
(d) with respect to the sale of cattle, hogs, or sheep, there is no
implied warranty that the cattle, hogs, or sheep are free from
disease, if the seller shows that all state and federal law concerning
animal health has been satisfied.
(4) Remedies for breach of warranty can be limited in accordance with
the provisions of this article on liquidation or limitation of damages
and on contractual modification of remedy (sections 2-718 and 2-719).
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