Sign Iowa Arbitration Agreement Now

Document type sign arbitration agreement iowa now

[Music] hello welcome to the arbitration conversation so in this arbitration conversation we're finally going to talk about ad hoc arbitration and also about student adjudicatory processes so some different topics from a very practical standpoint with a true leader in the area and someone who really has just an outstanding background i feel very honored that we have her honor um the former justice of the iowa supreme court marsha turnus marcia turnus is a perfect example of someone who has been a dispute resolution provider really throughout her career but also having that expertise not only a private practice but also actually serving on the iowa supreme court so marcia thank you for taking time with us i know how busy you are hi amy thank you for having me it's fun to be here i think we'll see yeah you'll wait and see well the cool thing is too um marsha lives in des moines iowa and i lived in des moines iowa for four years and so prior to taping we got to talk a little bit about des moines and um all the changes there which is also really cool subject but today we're talking about arbitration so i first of all wanted to ask you kind of when you made the decision um to move to doing more council and um and also of course with arbitration itself and doing the student adjudications out of the iowa supreme court how did what was the journey like for you to make that decision well i really didn't make the decision to leave the court i was one of the three justices who were voted out in 2010 because of our decision in the same sex marriage case so i found myself with the opportunity to have a really vibrant um third chapter in my career while i was still relatively young i was in my late 50s when that happened and of course i love judging i love writing decisions and so it seemed a natural avenue for me to take and so i've just over time tried to build up an arbitration practice i must say i did try mediation because there was really much more demand for that at least initially and even now i'm sure but i just wasn't cut out for the um some people would say the diplomacy required i kind of felt like it was the manipulation that was required i just didn't take to that at all but arbitration i love and people do actually call mediation benign manipulation people do they yeah i agree so what you're saying is absolutely true no question yeah and of course the thing about arbitration is there's so many different areas that often we don't even talk about um and one of those areas is really student conduct proceedings i would love it if you could explain how that works and sort of the practical aspects of conduct proceedings yeah well generally if i'm asked to participate in a student conduct misconduct hearing it's because it's a title ix case and the hearings have evolved over the last 10 years because of different guidances and regulations from the department of education the federal department of education so they're not exactly like an arbitration there are generally not attorneys but you do have a meeting or hearing where the parties give their version of facts there's generally quite a thorough investigation that is done before the hearing and the adjudicator gets the report from the investigator and then of course you make a you evaluate the evidence weigh the facts make decisions on the disputed issues and then determine whether there is responsibility for the alleged misconduct and write up a decision really just like any trial judge or supreme court judge would write so the process is a little different but the i think the skill set is is clearly what you would expect from an arbitrator oh a hundred percent i mean i think it's a perfect example of an area that really is essentially arbitration and then you're not going to a court of law um but the process is absolutely the same and also in handling other arbitrations what does it mean for an arbitration and again maybe those watching this they're not really sure kind of where things fit in because so many times people hear about aaa arbitration or jam's arbitration what does it mean for an arbitration to be ad hoc well when when i talk about myself doing ad hoc arbitration it means that two attorneys or their clients have agreed on arbitration either pre-dispute or after the dispute has arisen there's no requirement in the arbitration agreement that they go through a certain entity although i have actually done arbitrations where the contract does require them to use aaa and they just decide they don't want to go through that expense take that route so it's just people who want to arbitrate and they come to me and ask me if i will do it so it's it's even more ad hoc in the sense that we have oftentimes a blank slate in terms of how we want to conduct the arbitration there are generally some parameters in especially in pre-dispute arbitration agreements they might refer to a specific set of rules that are going to be followed or some process for appointing arbitrators or just you know a variety of things that they could agree on ahead of time but by and large they come to me without a lot of decision making ahead of time in terms of the process so i work with the attorneys and find out is speed of the essence do you do you want to do this like are we doing civil litigation through arbitration or are we really going to arbitrate and try to take advantage of the simplicity and the speed that it can be done with so it's fun it's fun because you get to work with closely with attorneys and generally it's been pretty people are pretty accommodating but sometimes you know you get an arbitration and you might as well be in court yeah we've talked in fact um with my class i've talked about the judicialization of arbitration when it sort of becomes very judicialized i don't see the point of that well i guess now i can kind of see the point of it because trials civil trials are going to be so delayed that uh even people who want the whole civil litigation process may need an answer sooner than they're going to get it in court and i think that's particularly true with business litigation you know how do you plan for the future where to make investments what staff you need if you have some uh commercial dispute looming over your head you know you need to get that decided and out of the way so i see more of that than i think other types of cases although all of these nursing home uh retirement home contracts seem to have an arbitration clause so i i've done several of those too and have you seen and now sort of thinking about the practical aspects with of course cover 19 pandemic um which you know as you mentioned courts are going to be very delayed for a long time um to catch up have you seen a growth in these kind of submission agreements also um where people are actually agreeing post dispute to go ahead and arbitrate i am beginning to see that yeah i i didn't see it much at the like until the end of 2020 because i think there was still hope that courts could get up and running but i know here in des moines they're setting trial dates last last year like at the end of 2020 they were setting trial dates for 2022 and so that's what's getting lawyers thinking you know if we can't get this settled maybe we should just arbitrate but i think they have to think long and hard about the expense of that really because um you know they have to pay the arbitrator and if they're going to have discovery disputes and [Music] bring in every witness it can really add up uh for cost but the one i just did one a couple weeks ago and they had agreed they would bring the primary witnesses in in person all other witnesses would be by statement and so i think that you there are ways to stream streamline even complex cases in this case was very complex it took four days which i know some take weeks but um there were just a lot of issues and a lot of facts to be uh developed and so did you actually um conduct it virtually then or um how was this i'm guessing virtually that's a lot of time online you know i wonder what do you have any advice for sort of screen fatigue right because i imagine in a long term you know very complex arbitration that would mean a lot of time on zoom even yeah yeah we've tried to take breaks at logical times but generally we had a morning break a lunch break and an afternoon break but the nature of the case was that there were a lot of documents that were being discussed and so it wasn't just the parties and the attorneys and me looking at each other with the occasional witness coming in and just hearing questions there was a lot of docu a lot of documents being put up the attorney both attorneys were very skilled in being able to use the technology and so it was very easy to share screens and they put something up and they'd blow it up and you know switch to another document and so i think maybe that kept it um more energized than if it were just witnesses without the screen ever changing um so we really didn't find it necessary to take a lot of breaks just a morning and an afternoon break and everybody seemed to be fine we never did for various scheduling reasons have a day that went very late i think the latest maybe we went in any given day was three or three thirty so that probably made a difference too well and do you have any sort of practical advice for um attorneys as they're thinking about um really how they would present their case in these virtual arbitrations that are of course happening everywhere right now and probably here to stay given the cost differences do you have any sort of practical advice well i think that the most practical advice i can give to them is that before they get very far into the arbitration it's really good to develop some rapport with the other attorney and try to agree ahead of time on doing things the easy way so that it goes smoothly and quickly because i'm still assuming that if people want to arbitrate they want to arbitrate to get the advantages of arbitration now as i said i think there will be some people who will want just to do civil litigation through arbitration but if you're trying to use arbitration for the advantages then i think it's really important to talk ahead of time decide things like do we can we put in expert evidence with a report how many depositions do we want to do here and a lot of those practical decisions can be made before you ever get to the arbitrator now once they get to me if they can't agree i'm happy to make decisions that's what they pay me for but i think things will go smoother and cost your client less if you take that approach to arbitration and then during the hearing i really don't see it being much different than how you would try a case live i real i really don't the only difference and this is significant of course you've got to become comfortable with the technology so that you feel comfortable talking to a screen and importantly if you're going to have exhibits then you need to have those ready to go you need to practice ahead of time i mean one of these attorneys he could do all kinds of things with documents and draw circles around things and really use it in an aggressive energized way and i think that helps the presentation of your case and probably even more when it is virtual yeah the practicing would be good oh absolutely that just i mean and it shows how um you know really having these skills um to be able to use the technology becomes really important i guess um lastly do you have any recommendations um going to that question of technology another question that comes up from a practice standpoint is when do you think an attorney should maybe hire somebody to be their technical help for example i know how some um new businesses have actually popped up where they're helping with the technology yeah that's true well i think if you are not comfortable with the technology and you don't feel capable or have the desire to become competent using it and it is a case that involves a lot of documents then yeah you probably need somebody to assist you and it may just be a younger person in the firm you know you may not have to hire somebody outside the firm and i have seen that i have did have a hearing where a younger person in the firm was kind of serving as the tech guy with documents so that certainly um i mean that that's a cost i suppose but not as much as if you would go outside the firm but i think it's a personal decision but certainly if there's a lot of documents and and you're not up to managing them yeah you better have somebody because you do not want everybody to sit there while you stumble along that would make a hearing it would lengthen it it would be aggravating it would be costly because you're just wasting time no that's a great point and it also just kind of emphasizes i know i say this for my students as well to think about the opportunities they might have in arbitration because of their ability to work with the technologies that's good to hear yes absolutely you know and i think even when the pandemic is over that a lot of this will continue to be done virtually it is so convenient and it is particularly helpful if you have witnesses from around the state or around the country you know they can come in via zoom or whatever platform that you are using and it's convenient for them and they're much happier to testify because it is convenient it's just a good um it's a good way to do it for a lot of reasons besides safety well you know that's near and dear to my heart being a proponent of oar for a long time so thank you for adding that yeah oh i love it i really do and you know a lot of my adjudications going back years have always been virtual because oftentimes students aren't they're either not still on campus or it's spring break when you're doing it or it's over the summer when you have the hearing and so they're off to wherever they're from and so i've used done virtual hearings for years and years and i should just say that because maybe it colors my comfort it surely helps me in terms of my comfort level but um i do think that with use anybody would would really enjoy the convenience of it and and i think that i don't feel that i lose very much in terms of judging credibility by not seeing body language i mean who do judges think they are i mean there are some people who just by their body language you think boy they're they're uncomfortable but why are they uncomfortable because they're lying or because they're just intimidated by the situation so um i i think that there are a lot of ways to judge credibility in addition to the demeanor and what you see on the screen and so whatever little clues you might lose by not having a an in-person experience i think are very very minimal yeah that's a great point and i'm glad you brought up the student adjudications because the other piece i would imagine is it lowers the stress for the student i would think when they're um not in person because that's got to be a very scary situation for those students as well in person yeah totally yeah i will say this for for the uh title ix adjudications they're never in the same room at the same time um but but the ones we have been doing recently they're virtually in the same meeting at the same time and i think it does help a lot when they're not testifying i let them turn off their video they're still connected with audio and so that's that's a huge pressure release i think for them just to be able to listen but not be in the same room and not have their uh video showing so uh yeah virtual hearings in those situations i think are really really a good thing yeah absolutely well i have to tell you this has been really helpful there's so many pieces that have been really helpful and i'm so thankful that you took time because this is really really great also i should note we're going to be speaking together on a panel coming up with the creighton law review um symposium so i'm looking forward to that as well me too me too