Dictionary of Terms Continued
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.
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.
RENDER: To transmit or deliver a
decision related to an arbitration, binding mediation or mediation-arbitration
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.
Terms Page One
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